New York State Court of Claims

New York State Court of Claims

VASSAR COLLEGE v. THE STATE OF NEW YORK, #2000-017-015, Claim No. 91201


Synopsis


The Court awarded both direct and indirect damages in this partial appropriation claim which affected two parcels of property owned by claimant Vassar College. The highest and best use of each of the two parcels was disputed.

Case Information

UID:
2000-017-015
Claimant(s):
VASSAR COLLEGE
Claimant short name:
VASSAR COLLEGE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
91201
Motion number(s):

Cross-motion number(s):

Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
Wallace & WallaceBy: Herbert N. Wallace
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: J. Gardner Ryan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimant, Vassar College, seeks damages for the partial appropriation of its property pursuant to Highway Law § 30 and the Eminent Domain Procedure Law. The Claim was filed with the Clerk of this Court on February 23, 1995, and it has not been assigned to any other court or tribunal for audit or determination. The Court has made the required viewing of the property pursuant to Court of Claims Act § 12(4).

Claimant owns approximately 257 acres of land along Route 55 in the Town of Poughkeepsie, New York that have been used as the campus for Vassar College. The land was bequeathed to the College in 1927 and since that time the land has not been used for other than educational purposes. On August 26, 1993, defendant appropriated approximately 2.8 acres of land in fee and 232± square feet (or 0.00534 acres) of land as a permanent easement from claimant in connection with the widening of State Route 55, a major east-west thoroughfare in Central Dutchess County by filing appropriation map and description entitled "Poughkeepsie - Pleasant Valley, S.H. No. 549 (Manchester Road), Map No. 424, Parcel Nos. 535, 536 and 537" in the Dutchess County Clerk's Office. The State also appropriated 661 square feet or .015 acres for a temporary easement by filing Map No. 435, Parcel No. 548 (
see, Exh. A, Addendum D). This taking affected two discrete portions of the 257-acre site that exist on the north side of the highway. The remaining lands of the college are present on the south side of Route 55. The Court has adopted the descriptions of the property as contained in defendant's appraisal (see, Exh. A).
The two parcels impacted by the appropriation, denoted herein as "Parcel 1" and "Parcel 2," are divided from the larger Vassar campus by Route 55 and from one another by lands of the Central Hudson Gas and Electric Corporation (hereinafter "Central Hudson") which were acquired from claimant in 1959. The two affected parcels are approximately 300 feet away from each other and were zoned IL-Light Industrial, which has a minimum lot size of 2 acres. Permitted uses within the IL zone include banks, business parks, municipal buildings and laboratories, among others, and the site may be developed for such uses as motor vehicle sales and service shops, contractors' offices and warehousing, among other uses, by special permit (
see, Exh. 6, pp. 42-45).
The parties agree,[1]
and the Court so finds, that the date of valuation is August 26, 1993, and the State does not dispute claimant's ownership of the property or raise any other jurisdictional impediment to recovery. Accordingly, the sole issue for this Court's determination is the valuation of claimant's damages.
The threshold question in measuring damages caused by the State's exercise of its eminent domain powers is whether the highest and best use of the property was diminished by the taking. The term "highest and best use" is defined as "that reasonably probable and legal use of vacant land or an improved property, which is physically possible, appropriately supported, financially feasible and that results in the highest value" (7 Nichols on Eminent Domain [hereinafter "Nichols"], § 4.04[4][a][ at 9-58 [3d ed]).

A landowner is entitled to receive compensation for the fair market value of appropriated property in its highest and best use, regardless of the actual use being made thereof at the time of the taking (
see, Matter of County of Suffolk [C.J. VanBourgondien, Inc.], 47 NY2d 507; Matter of Rochester Urban Renewal Agency [Patchen Post, Inc.], 45 NY2d 1). The determination of a property's highest and best use "must be based upon evidence of a use which reasonably could or would be made of the property in the near future" (Yaphank Devel. Co. v County of Suffolk, 203 AD2d 280, 281).
PARCEL 1:
Before the taking, Parcel 1 was a 1.77-acre parcel of land located in the Town of Poughkeepsie that was triangular in shape and largely level, with 461 feet of frontage on State Route 55 at highway grade. The land was located next to an electrical substation owned by Central Hudson. Parcel 1 was dissected by a 100-foot wide utility right-of-way which encompassed approximately .57 acres of land and permitted ingress and egress to the substation on adjacent property (
see, Photos, Exh. A, p. 25). By the terms of the easement, claimant may cross and re-cross the easement area as of right, but must obtain the written permission of Central Hudson to erect any structure on the easement area (see, Exh. 6, pp.110-113). An electrical transmission line and a gated, partially paved access drive follow the right-of-way. Approximately 0.3 acres of the 1.77-acre parcel lie to the east of the right-of-way, and approximately 0.93 acres lie to the west of the right-of-way. Because of the presence of the right of way and the topographical limitations on the site, the Court finds that the utility of this property was fair prior to the taking.
The appraisers hired by claimant and the State disagreed on the highest and best use of Parcel 1 in the before situation. Claimant's appraiser concluded that the highest and best use was for light industrial use as zoned and supported this conclusion with a proposed site plan developed by Jeff Kane of Chazen Engineering & Land Survey Co., P.C. (
see, Exh. 6, pp. 51; 103-107), who also testified at trial. To support this view, claimant was required to demonstrate that there was a reasonable probability that an area variance would be granted for the parcel (see, 4 Nichols, at 12C-81), which was approximately 1/4 of an acre shy of the 2-acre minimum lot size required by the zoning ordinance. To satisfy this standard, claimant need not establish that the variance would be granted with "reasonable certainty," but the proof of a potential grant of such an application cannot be remote or speculative (id., at 12C-82).
Claimant's appraiser opined that there was a reasonable probability that such a variance would be granted, based on his conversations with Wilson Shook, a Town of Poughkeepsie Planner, and his review of Mr. Kane's report, which details the criteria commonly applied by zoning boards to ascertain the merits of area variance applications and his opinion that the criteria could be met for Parcel 1 under the before circumstances. The Court notes in this regard that Mr. Kane is an experienced site planner (
see, Kane Resume, Exh. 5) who sits on the Zoning Board of Appeals in another jurisdiction. Mr. Kane testified at trial that he was aware that an area variance had been granted by the Town to a parcel that was smaller in size than Parcel 1, and thus that in his professional opinion an area variance for nonconforming lot size would have been approved in this instance.
Defendant's appraiser concluded that because of the parcel's need for a size variance its difficult topography and the burden of the easement, the property would be undesirable to prospective purchasers, who could find an abundance of other superior sites in the market. Defendant's appraiser doubted the feasibility of obtaining an area variance, testifying that she had researched the issue and found that no area variances had been granted in the Town during the years 1992, 1993 or 1994 for the development of new commercial buildings.

The Court finds that defendant's appraiser's view of the undesirability of this property was too conservative, given her own acknowledgment that "[t]he subject parcel has excellent exposure because of its location on the heavily traveled Route 55 on the eastern side of the Town of Poughkeepsie leading into the Town of LaGrange * * * " (Exh. A, p. 33). In so finding, the Court has also placed reliance upon the rebuttal testimony of Wilson Shook, a Planner for the Town of Poughkeepsie for 28 years, member of the Town Planning Board, who indicated that he believed that commercial development of this property would be favorably viewed by the Town, that the location of the property on State Route 55 was appropriate for such development, and that he would recommend favorable action on an application for an area variance for use if presented with a plan that fell within the applicable zoning regulations. Accordingly, the Court finds that a reasonable probability existed that an area variance would have been granted for Parcel 1 prior to the taking.

Defendant also contends that even if an area variance were forthcoming, the property would remain undevelopable because of the restrictions presented by the right-of-way. The instrument granting the right-of-way to Central Hudson provides in pertinent part that claimant retains "the right to cross and recross said easement and right of way provided that such use of said ground shall not interfere with, obstruct or endanger any of the rights granted as aforesaid and provided that no house or other structure shall be erected, no road, path or driveway shall be constructed, and no excavating, mining or blasting shall be undertaken within the limits of the right of way without the written consent of [Central Hudson]" (Exh. 6, p. 113). From the terms of the instrument, it is clear that although claimant retains the right to cross and recross that area as of right, no structure or driveway can be erected by claimant as of right on the lands encompassed by this easement, without the prior written consent of Central Hudson.

Defendant points to the site plan proposal for Parcel 1 (
see, Exh. 6, p. 51) which utilizes the existing access point to the Parcel on the Central Hudson right-of-way and argues that development of this property is not feasible since it is not probable that Central Hudson would authorize claimant to use the area of the right-of-way to build a permanent driveway. Defendant objects on hearsay grounds to claimant's reliance upon a statement of a Central Hudson Employee, Mr. Feeney, contained in claimant's appraisal (see, Exh. 6, pp. 37, 47), that Central Hudson would allow the area to be used for an access road and parking. The Court need not consider that statement because it finds that the site could be developed for the highest and best use as proposed by claimant without use of that right-of-way area. The Court credits the testimony of Mr. Kane that although the existing access point which is over the right-of-way area was utilized in the proposed site plan, an access point could have been chosen at any place along the unencumbered Route 55 frontage. The Court also notes that it has credited the testimony of claimant's appraiser that while the building proposed in the site plan would have maximized the development potential of the property, a much smaller building could have been erected than that proposed, thereby limiting the potential for interference with the lands encumbered by the right-of-way.
The Court thus finds that the highest and best use of Parcel 1 prior to the taking was for light industrial retail/office development. Given that conclusion, the Court is unable to rely on any of the sales proffered by defendant's appraiser, who utilized sales of properties that had value only to adjoining landowners and not for independent development.

Claimant's appraiser utilized four comparable sales in the before situation and analyzed them pursuant to the market data approach. Based on those sales, claimant's appraiser found a per-acre value ranging from $65,982 to $117,547. The Court notes that claimant's appraiser made an across the board negative 10% adjustment under the category "property rights conveyed" which he explained accounted for the difficulties in development posed by the presence of the easement on the site. The Court finds that this adjustment was too conservative, and that a negative 30% adjustment for the presence of the easement, which bisected the property and required written approval from Central Hudson for any development on that portion of the land, more appropriately reflects these difficulties.

Turning to the specific sales, Sale 1 involved a 3.1-acre parcel of land in the Town of Poughkeepsie that sold in February of 1990 for $180,000 or $58,065 per acre. Claimant's appraiser made a negative 10% adjustment for property rights affected by the easement, a negative 20% adjustment for market conditions, based on the date of the sale, a positive 20% adjustment for location, given the subject's superior position on a State highway, and a negative 5% adjustment for utilities, since the subject does not have access to municipal sewer, as does the sale property. The Court credits all of the adjustments made by claimant's appraiser to this sale, with the exception of the adjustment for property rights conveyed, which the Court has changed to negative 30%, and the adjustment for market conditions, which the Court has changed to negative 10%.[2]
Based on these adjustments, the Court finds that a net positive adjustment of 5% is warranted and that the indicated per-acre value resulting from this comparable sale is $60,968. The Court has placed greatest weight on this comparable sale, which is closest in vicinity to the subject and which required significant site-preparation costs that rendered the utility of the parcel "fair," as was the subject's because of the easement.
Sale 2 involved a 1.597-acre parcel in the Town of Poughkeepsie that sold for $108,000 or $67,627 per acre in November of 1993. Claimant's appraiser made a negative 10% adjustment for property rights, a positive 20% adjustment for the superior location of the subject, a positive 10% adjustment for utility to reflect the superior frontage on the subject, and a negative 5% adjustment to reflect the sale property's access to municipal sewer. No size adjustment was made, and the Court finds that none was warranted, given the similarity in size between the subject and this sale. The Court credits each of the noted adjustments, except the adjustment for property rights, which the Court has changed to a negative 30%. Based on the foregoing, the Court finds that a net negative adjustment of 5% is warranted and that the adjusted price per acre indicated by this sale is $64,246.

Claimant's Sale 3 involved the sale of a 1.13-acre parcel in the Town of East Fishkill that sold in November 1994 for $90,000 or $79,646 per acre. Claimant's appraiser made a negative 10% adjustment for property rights conveyed, a positive 20% adjustment to reflect the subject's superior location, a negative 10% adjustment for the smaller size of the sale property, a positive 10% adjustment for utility to reflect the superior frontage of the subject, and a positive 5% adjustment for the subject's superior utilities. The Court has changed the adjustment for property rights conveyed to negative 30% and has otherwise credited the adjustments of claimant's appraiser. Based on the foregoing, the Court finds that a net negative 5% adjustment is warranted for an adjusted per acre value of $75,664. The Court notes that it has placed limited weight on this sale, since it is located in East Fishkill.

Claimant's fourth sale involved a 3.167-acre parcel in the Town of Poughkeepsie that sold in December 1991 for $315,000 or $99,463 per acre. The Court has disregarded this sale, given that the purchase involved the transfer of a salvage permit that made the property more attractive to buyers, but the value of the permit could not be ascertained.

Based on the foregoing, the Court finds that the adjusted per-acre range of value for the subject parcel falls at the lower end of the range between $60,968 and $75,664. Thus, the Court finds that the before-value of Parcel 1 was $62,000 per acre and that the value of the entire 1.77 acres was $109,740.

In connection with the highway project, the State appropriated approximately 1.24 acres in fee from Parcel 1, including lands within the easement area, leaving claimant with 0.527 acres on this parcel. The State additionally acquired a permanent easement over 232 ± sq. ft. and a temporary easement over 660 ± sq. ft. of land from that parcel in connection with the project. As a result of the taking, the developable portion of Parcel 1 was removed from the site, leaving claimant with 0.53 acres of land which was significantly covered by the easement area.

Both appraisers agreed that, in the after situation, Parcel 1 could not be independently developed, and that its highest and best use would be as land sold to adjoining landowners for assemblage purposes. Both appraisers employed the Market Data Approach to measure the value of the remainder. Claimant's appraiser relied on three sales and found an adjusted range of value per square foot from $0.93 to $1.28 or $40,458 per acre to $55,808 per acre, or an adjusted value ranging from $21,321 to $29,411 for the remainder parcel. Defendant's appraiser also utilized three sales, two in common with claimant, and found an adjusted range of value of the remainder parcel of between $5,000 and $13,200. The Court has disregarded claimant's Sale 6, which is also defendant's Sale 3, given trial proof that established that the parcel involved in that sale was capable of being independently developed.

Turning to the specific sale data, claimant's Sale 5, which is defendant's Sale 1, involved a .19-acre parcel that sold in March of 1993 for $20,000 or $2.41 per square foot. Claimant's appraiser made a negative 30% adjustment under the category of "property rights conveyed" to reflect the fact that the easement covered over 60% of the remaining lands, while defendant's appraiser made a negative 75% adjustment under the category of "configuration" to reflect this fact. The Court finds that while the easement does pose a significant impediment for a prospective purchaser, since it now covers a majority of the remaining property, an adjustment of negative 75% is inflated, given that the area contained in the easement area can still be used by the purchaser to satisfy coverage and frontage requirements. Thus, the Court finds that a negative 50% adjustment is warranted to reflect the impediment posed by the easement, which now covers a majority of the property. The Court also finds that a positive 10% adjustment is warranted to reflect the fact that the Sale parcel is landlocked and offers no frontage to the purchaser. Accordingly, the Court finds that a net negative adjustment of 40% is warranted and that the adjusted value of the remainder deduced from this sale property is $12,000. The Court has placed greatest weight on this common sale data in order to reconcile the appraisers' divergent valuations of the subject property (
see, Matter of Village of Johnson City [Waldo's, Inc.], 215 AD2d 917, 918).
Claimant's Sale 7 involved the sale of a .22-acre parcel in the City of Poughkeepsie that was purchased in August 1991 for $12,500 or $1.27 per square foot. Claimant's appraiser made a negative 30% adjustment under the category of property rights conveyed, which the Court changes to negative 50%, a negative 10% adjustment for the larger size of the subject, a positive 20% adjustment for utility, based on the Sale site's inferior configuration, a negative 5% adjustment for the subject's inferior utilities, and a negative 10% adjustment for the superior zoning designation on the sale site.
Given that the property was purchased for assemblage and not independent development, the Court finds that the adjustments made for size, utility, utilities and zoning are unnecessary and that a net negative 55% adjustment accurately reflects the comparability of the subject and this sale site, which also offers some frontage. Accordingly, the Court finds an indicated value of $5,625 for the remainder.
Defendant's Sale 2 involved a .14-acre parcel that sold in May of 1992 for $35,000 or $5.73 per square foot. The Court has reduced the adjustment for configuration from negative 75% to negative 50% to reflect the presence of the easement and finds that this is the only adjustment that is warranted. Based on the foregoing, the Court finds that the adjusted value of this sale property is $17,500.

Based on the foregoing, the Court finds that the value of the remainder of Parcel 1 is $12,000. Accordingly, the Court finds that claimant has been damaged due to the partial appropriation of Parcel 1 in the amount of $97,740. The Court attributes $76,880 to direct damages for the taking of 1.24 acres of land valued at $62,000 per acre or $1.42 per square foot. The Court finds that indirect damages for the diminution in utility of the land amount to $20,860.

Claimant is also entitled to recover $329 for the State's taking of 232± sq. ft. in connection with a permanent drainage easement on Parcel 1, which will significantly limit claimant's use of the area. Claimant's award must also include recovery for the rental value of 660 ± sq. ft. of land used for a temporary construction easement which endured from August 26, 1993 through October 18, 1999 or 73.75 months. The Court finds that the value of the temporary easement should be fixed at 10% of the value of the area used and concludes that claimant should be awarded $762 ($62,000/acre x .02 acres = $1,240 x10% = $124 per year or $10.33 per month x 73.75 months) plus interest during that period.

PARCEL 2:
Prior to the taking, Parcel 2 consisted of 4.76 acres of land in the IL zone, consisting of a .71- acre area of level land on a plateau that is readily developable, a wetland area and buffer area of 1.75 acres and 2.30 acres of lower land situated below grade. The utility of the lowland was limited due to access problems, and claimant's appraiser adopted an estimate of Chazen that it would cost $75,000 to build an access road to that lower rear portion of the property in furtherance of its development.

The parcel enjoyed 523± feet of frontage on Route 55 and was conforming in all respects to the zoning ordinance. On the date of the taking, the parcel was improved with a 1,500 sq. ft. single family residence that was built in 1900 and a detached garage. The residence was occupied by an employee of the college and generated rental income.

Both appraisers essentially determined that the highest and best use of this parcel of property prior to the taking was for future light industrial use consistent with its zoning, with its current residential use remaining as an interim use (
see, Exh. 6, p. 135; Exh. A, p. 65). Both appraisers also concluded that the value gained from the rental of the house in the interim balanced the costs associated with demolition of the structure which would be necessary in furtherance of its development in accordance with its highest and best use.
Turning to the particular sales, the Court notes that the appraisers utilized two sales in common, and the Court has placed heaviest reliance on those sales (
see, Matter of Village of Johnson City [Waldo's, Inc.], 215 AD2d 917, 918, supra). Claimant's appraiser relied upon four sales, and concluded that the adjusted per-acre value of the subject ranged from $34,255 to $52,786. Defendant's appraiser relied upon three comparable sales and determined that the adjusted per-acre value of Parcel 2 was between $44,610 and $55,215.
Claimant's Sale 1 involved a 3.1-acre parcel in the Town of Poughkeepsie that sold in February 1990 for $180,000 or $58,065 per acre. Claimant made a negative 10% adjustment to reflect the superior market conditions at the time of the sale, a positive 20% adjustment to indicate the superiority of the subject's location on a State highway, a negative 10% adjustment for size, a negative 10% adjustment for utility, since the sale property required $75,000 for excavation in connection with site preparation, a negative 5% adjustment because the subject does not connect to municipal sewer, and a positive 5% adjustment to reflect the contributory value of the residential improvement on the site. The Court finds that the parcels are similar in size and that the rental value of the improvement will simply offset the cost of its eventual demolition. Thus, the Court finds that the adjustments for parcel size and for the contributory value of the improvement are unwarranted, but otherwise credits the adjustments made by claimant's appraiser. Given the foregoing, the Court finds that a net adjustment of negative 5% is warranted and the adjusted per-acre value indicated by this sale is $55,162.

Claimant's Sale 2 is a 6.24-acre parcel that sold in June of 1990 for $260,000 or $41,667 per acre. The Court credits the negative 10% adjustment for market conditions, positive 20% adjustment for location, and positive 5% adjustment for the subject's superior utilities, but has eliminated the positive 10% adjustment for size and the positive 5% adjustment for contributory value of the improvement. The Court also finds that the negative 20% adjustment for utility is too severe and that finds that negative 10% more accurately reflects the inferior utility of the subject. Accordingly, the Court finds that a net positive adjustment of 5% is warranted and that the adjusted per acre value of this sale is $43,750.

Claimant's Sale 3 is defendant's Sale 4. The sale involved a 5.27-acre parcel that sold in March 1993 for $240,000 or $45,540 per acre. Both appraisers made a positive 20% adjustment for the superior location of the subject on State Route 55, which the Court credits. Claimant's appraiser made an additional negative 20% adjustment to reflect the inferior utility of the parcel, which the Court reduces to negative 10% as in Sale 2. The Court also credits the negative 5% adjustment for the unavailability of municipal sewer on the subject and disregards the positive 5% adjustment for the value of the improvement, as previously discussed. Thus, the Court finds that a net positive 5% adjustment is warranted and that the indicated value from this comparable sale is $47,817.

Claimant's Sale 4, which is also defendant's Sale 6, involved a 4.08-acre parcel that sold in September 1993 for $140,000 or $34,315 per acre. The Court credits the positive 20% adjustment made by both appraisers, the positive 10% adjustment made by defendant's appraiser for the superior configuration of the subject, the positive 5 % adjustment for utilities, and reduces the negative 20% adjustment for utility to negative 10% for a net adjustment of positive 25% and an indicated value of $42,894 per acre.

Defendant's Sale 5 consisted of a 3.26-acre parcel that sold in September 1992 for $120,000 or $36,810 per acre. The Court credits the positive 50% location adjustment made by defendant's appraiser and concludes that the adjusted per-acre value is $55,215.

Based on the foregoing sales data and adjustments, the Court finds that the range of value for Parcel 2 was from $42,894 to $55,215 before the taking, and that $52,000 most accurately reflects the per-acre before-value of Parcel 2 and that the value of the entire 4.76-acre parcel prior to the taking was $247,520.

After the taking of 1.558 acres, the size of the parcel was reduced to 3.202 acres. The single family residence and accessory garage were also removed as a result of the taking, as was the plateau area that was most level to the roadway. As a result, the property is entirely below highway grade (
see, Exh. 6, p. 162), and the Court credits the opinion of claimant's expert, Mr. Kane, as well as that of Mr. Smisko, the highway's designer called by the State, that an access road to develop this below-grade property would result in considerable expense to a potential buyer and diminishes the utility of this parcel in the after situation. After the taking, a drainage ditch was also installed on the highway and would require claimant to build some type of culvert to cross it to gain access to Parcel 2.
Claimant's appraiser concluded that because of the elevation problems resulting from the taking, the highest and best use of the property in the after situation would be to develop it in conformity with existing zoning for a "low-utility" use which would not require visibility and immediate access to Route 55. In measuring the after-value of Parcel 2, claimant's appraiser relied upon comparable data of what he referred to as "low utility" sales. The appraiser then also made a negative 20% adjustment, among others, to reflect the diminished utility of the subject in relation to those sales, and found an adjusted range of value of $9,167 to $23,976. The Court has placed little weight on this sales data, given what appears to be a double reduction in value for the diminished utility of the subject.

Defendant's appraiser concluded that the highest and best use of Parcel 2 remained the same, although she recognized that the elimination of the level plateau area in the after-situation and the resulting sloping topography warranted a further adjustment to her before-valuation of negative 15% in sales 4 and 5 and of negative 5% in sale 6. The Court finds that a negative 25% adjustment better reflects the diminished utility of the parcel than the numbers selected by defendant's appraiser, and that the adjusted per-acre value indicated by Sale 4 is $43,263, by Sale 5 is $46,013 and by Sale 6 is $32,599. Given that the highest and best use of Parcel 2 after the taking has remained unchanged, the Court finds that it is also appropriate to measure the after-value of Parcel 2 by reducing the before value of $52,000 per acre by 25% to reflect the increased costs for developing this now fully below-grade property. This process results in an indicated after-value, per acre, of $39,000.

Based on the foregoing, the Court finds an after-value of Parcel 2 of $39,000 per acre or $124,878 for the 3.202-acre parcel. Accordingly, the Court finds that the value of the property has been diminished by the taking in the amount of $122,642. The Court attributes $81,016 to direct damages for the taking of 1.558 acres valued at $52,000 per acre. The remaining damages of $41,626 are attributed to indirect damages resulting from the State's taking of the level, developable portion of the parcel and the need to construct a bridge or culvert to cross the new drainage structure to gain access to Parcel 2.
SUMMARY OF DAMAGES
PARCEL 1:
Direct Damages: $76,880

Indirect Damages: 20,860

Permanent Easement: 329
Temporary Easement:

(8/26/93-10/18/99) 762
$98,831
PARCEL 2:

Direct Damages: $81,016

Indirect Damages: 41,626
$122,642

TOTAL DAMAGES: $221,473

In accordance with the aforementioned analysis the Court finds that claimant is entitled to a total award of $221,473 with appropriate interest from August 26, 1993 to February 26, 1994, and from February 23, 1995 to the date of the decision herein, and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002and Court of Claims Act §19(1). All trial motions not heretofore decided are deemed denied.

The award to claimant is exclusive of the claims, if any, of persons other that owners of the appropriated property, their tenants, mortgagees and 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 property or contiguous thereto; and is exclusive also of claims, if any, for the value of damage to easements and appurtenant facilities for the construction, operation and maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer and railroad lines.

LET JUDGMENT BE ENTERED ACCORDINGLY.

June 30, 2000
White Plains, New York

HON. ANDREW P. O'ROURKE
Judge of the Court of Claims




[1]
Defendant's appraiser had erroneously listed the date of valuation as August 23, 1993 in her appraisal, but testified at trial the August 26, 1993 was the correct date and that the correction would not change her appraisal.
[2]
Claimant's comparable Sale 1 for Parcel 1 was also Claimant's comparable Sale 1 for Parcel 2. Claimant's appraiser made a negative 20% adjustment for market conditions when comparing the comparable sale to Parcel 1, but only a negative 10% adjustment for market conditions when analyzing Parcel 2. The Court finds that a negative 10% adjustment more accurately reflects the superiority of market conditions at the time of the sale of that comparable.