New York State Court of Claims

New York State Court of Claims

EDWARDS v. THE STATE OF NEW YORK, #2001-005-015, Claim No. 96002


Synopsis


Appropriation

Case Information

UID:
2001-005-015
Claimant(s):
ARTHUR J. EDWARDS
Claimant short name:
EDWARDS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96002
Motion number(s):

Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Flower, Medalie & MarkowitzBy: Edward Flower, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Rose Lowe, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 13, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is a timely filed claim for the partial taking of real property and a temporary easement thereon owned by Claimant Arthur J. Edwards pursuant to the Eminent Domain Procedure Law and §30 of the Highway Law in a proceeding entitled "Port Jefferson-Riverhead," Pt. 1, SH 8094, as set forth on Map No. 393, Parcel 404 and Map No. 394, Parcel 405 (Temporary Easement). The appropriation maps and descriptions contained therein are adopted by the Court and incorporated herein by reference. Title vested in the State of New York on August 17, 1995, and the claim was filed with the Clerk of the Court on April 15, 1997. The Court has viewed the property which is the subject of this claim (Court of Claims Act §12[4]).

The subject property is located on the north side of Route 25A in the unincorporated hamlet of Miller Place, Town of Brookhaven, Suffolk County, New York. It has a frontage of 135.25 feet and a depth of 355 feet (a 50,615± square foot parcel)[1]
and the site is flat and level. The land is improved with an 11,628 square foot building.
The State appropriated a frontage strip of land 18.89 feet deep on the west running to 16.98 feet on the east and 135.25 feet in length, containing 2431± square feet. In addition the temporary easement extended over an additional 1,362 square feet.

The parties have entered into a series of stipulations, which are adopted by the Court,
inter alia, that: (1) the temporary easement was terminated on March 16, 1998, at a value of $147.00 per month for a thirty-one month period; (2) as a direct result of the appropriation, the Claimant sustained direct damages for the taking of his land in the sum of $27,000.00; (3) the Claimant sustained direct damages for the taking of land improvements in the sum of $15,587.00,[2] and (4) the parties stipulated eight enumerated findings of fact dated August 7, 2001, and set forth as Addenda 1 attached to this decision and made part hereof. As stipulated by the parties, the total direct damage amounts to $42,587.00 and the temporary easement damage is $4,557.00.
The Claimant's appraiser states that his appraisal was prepared in conformity with, and is subject to, the requirements of the Code of Ethics and the Uniform Standards of Professional Appraisal Practice (USPAP) but reserves the right to invoke the Departure Rule provision according to the USPAP as deemed necessary. Defendant challenges the reliability of Claimant's appraisal and the testimony at trial due to the use of the Departure Rule. I find that the Certificate of Appraisal properly stated the use of the Departure Rule as deemed necessary and at trial the Claimant's appraiser stated he did not use the cost approach. Accordingly, other than the articulated exception with respect to the cost approach, there is no noted departure from the code and uniform standards. The Defendant does not point to any aspect of the Claimant's appraisal where it is alleged, let alone demonstrated, that he departed from standards or failed to adhere to the USPAP requirements. The issue simply devolves to one of the credibility of the appraiser, an assessment applied to both appraisers and indeed all witnesses.

Thus I am called upon to ascertain whether severance damages exist, and if so, at what valuation. The parties present basically an all or nothing approach, inasmuch as the Claimant asserts such damages and the State contends that Claimant suffered no consequential damages. As will be seen below, I have rejected the State's arguments in this regard, and, while accepting Claimant's position, make certain adjustments to his valuations.

The Defendant does not assert a different highest and best use of the property in the after from the before as it believes there was no change in use, and no damages flowing therefrom. Frankly, Defendant's appraiser was unpersuasive, and his credibility ultimately diminished, as he urged me to find not even the slightest bit of severance damage as a result of the taking. As seen below, the record establishes at least the loss of two or three parking spots, and for commercial retail space, this alone is enough to generate at least a de minimus, but measurable, amount of consequential damage. Thus the Defendant's rejection of even a measly amount of severance damages contaminates his credibility and testimony. From that perspective, I now review the valuations proffered.

Both appraisers concur that the highest and best use of the property after the taking is the same as it was before the taking, to wit, a commercial use. It is currently utilized to house an owner-occupied swimming instruction school with a pool and related space, with the rest of the building rented out to various retail establishments, and there is no reason for me to believe that the optimal use has changed as a result of the taking.

The measure of damages is best measured here by finding the pre-taking value of the land and improvements and then assessing the value of the remainder after the taking and determining the difference in total value, if any. The cost approach, generally used for a speciality, is not applicable in the claim at bar (
Matter of Saratoga Harness Racing v Williams, 91 NY2d 639, 645-6). While I am familiar with the decision in Efco-Fa Development Corp. v State of New York, Claim No. 93054, March 29, 2002, Sise, J., where the court relied most heavily on the income capitalization approach, I find the market data approach better suited to the claim at bar. The income capitalization approach, addressed by both appraisers, can best be utilized to support, confirm or distinguish the values set forth in using the market data approach, which I find to be the best measure in this matter.
Claimant's appraiser, in utilizing comparable sales to value the improvement before the taking, took into account the location, plot size and improvement size (providing a land to building ratio), the zoning, as well as utility/parking, visibility, and aesthetics and the conformity to zoning. In Sale #4, also in Miller Place on Route 25A, the plot size was about 23% of the subject's, and the improvement (building) size was perhaps 13%(r) of the subject's, leading to a -15% adjustment because of the improvement size, but adding +10% due to the condition of the improvement which had been substantially renovated after the sale. Claimant's appraiser added 5% for utility/parking, and deducted 5% because the comparable was a corner property and for visibility. Claimant's appraiser opined net adjustments of -5%, but I find that he has not adequately deducted for the comparative improvement size, which should have a -20% adjustment, and thus applying the amended calculations, totaling a -10% deduction to Sale #4, leaves its adjusted value in the before as $132.00 (per square foot).

Sale #5, with a split residential and business zoning, was adjusted downward slightly for location and improvement size, but adjusted upward slightly for zoning and utility/parking, but more so for condition of the improvement, a building which had experienced some vandalism prior to its sale. The appraiser reported a plot size about 85% that of the subject, but a building (improvement) size about 29% of the subject building, and thus a land to building ratio of 1:12.76, versus 1:4.35 in the subject. The appraiser made an adjustment of -5% for improvement size, acknowledging that 40% was required to remain in a natural state, and with total net adjustments of +10%, found an adjusted value of $128.14. Sale #6, with a plot size approximately 50% of the subject, and an improvement size nearly 19% of the subject, had a land to building ratio of 1:11.53. Claimant's appraiser made 5% deductions for location and corner/visibility, with a +5% for zoning, and a negative 10% for improvement size, leaving an adjusted before value of $129.67.

I find no reason to disturb the Claimant's appraiser's adjustments to Sales #5 and #6, and amending his reconciliation of the improved sales value to comport with the adjustment I made to Sale #4, I find the supportable square foot value for the improved sales to be $130.00 per square foot, and thus the total before value of this improved property is $1,511,640.00 or
$1,512,000.00 (r) ($130.00 per square foot multiplied by 11,628 square feet). Indeed, that is a value which Claimant proffers in his post-trial memorandum (while challenging Defendant's valuation of Sale G, at Page 30) as the approximate value found by his appraiser. Claimant's appraiser, by averaging $1,570,000.00 (the comparable sales market approach), and $1,590,000.00 (the income capitalization approach), found a before value of $1,580,000.00, a minor overvaluation of about 4.3%, from the $1,512,000.00, which I find.
It is unnecessary to dissect the Defendant's appraisal in this regard as I find the Claimant's appraisal, with the minor adjustment that I have made, persuasively establishes the before value. While I have not totally discounted the Defendant's appraisal, I have already noted its weaknesses.

However, lest it go unstated, at least in one instance, both parties and their appraisers have muddied the waters, causing me to more carefully scrutinize the valuations proffered. One of the stipulations that the parties placed on the record herein was an agreed upon price of $10.50 per square foot for the value of the land at the time of the taking. They similarly stipulated to total direct damages to the land of $27,000.00. The area taken by the State was stipulated to be 2431 square feet. However, my calculations, taken by dividing the sum for direct damages by the number of square feet of the taking, reflects a price/value of $11.11 per square foot. Since the parties agreed and stipulated to the measurements and to the total amount of direct damages (land only, excluding the stipulated direct damages to improvements on the taking), I am mystified by the discrepancy of $0.61 per square foot (about 5.5%), a disparity never addressed by either party.

In attempting to value the diminution in value of the remaining parcel, referred to generally as severance, indirect or consequential damages, Claimant's appraiser has once again provided a market data assessment, using the same comparable sales that he used in the before, albeit providing different adjustments thereto, reflecting his opinion of the lesser value of the remainder of the subject. As a preface to these assessments, Claimant summarizes the effects of the taking as (1) a reduction in the landscaped setback in front of the building from approximately 35 feet to about 17 feet; (2) the proximity of the building to the right of way; (3) the loss of either two or three parking spaces, and (4) the putative non-conformance of the building vis-à-vis the zoning ordinance of the Town of Brookhaven.

Both appraisers utilized the same comparable sales and leases in the before and in the after, but adjustments were made only by the Claimant's appraiser after the taking. His adjustments putatively reflect the greater proximity of the building to the roadway, the loss of landscaped setback areas, the loss of some parking and the consequent non-conformation of the subject relative to the Town of Brookhaven's Building Zone Ordinance, all as a result of the State's taking. While the expert testimonies were equivocal, I find that at least two, and possibly three parking spaces were lost as a result of this taking. Additionally, I also find there was a loss of aesthetics due to the taking, most obviously shown in the contrast between the pre-taking photographs (Exhibit B, p 104) and the post-taking photographs (Exhibit B, p 105, and Exhibit 3, pp 2 and 3 [corrected on the record to be after-taking, not before]). With respect to the contested setback issue, prior to the taking the building was 35 feet from the front property line. The taking reduced the landscaped setback to approximately 17 feet to the right of way. The Town of Brookhaven has a 15 foot setback requirement, but the contested issue before me was the overhang of the building's roof which extends in some places as much as some two feet eight inches from the building itself, and thus arguably encroaches into the 15 foot Town setback requirement.

Furthermore, the loss of two or three parking spaces, in addition to the loss of convenience of spaces closest to the tenant occupying the front portion of the building, also causes the remaining number of parking spaces, whether the loss is two or three spots, to fall below the Town of Brookhaven requirement of one parking space per 150 square feet of building (requiring some 77.52 spaces). The parties quarreled about a putative safety island (so denominated by Claimant) and whether it was a requirement from the roadway, and thus diminished the available amount of parking space at its pre-taking depth. But what is clear however is that the taking has reduced the number of parking spaces to a level that falls below the Town's minimum requirements, creates a non-conformance with zoning that more clearly caused a diminution in post-taking valuation.

While I agree with Claimant's appraiser that adjustments for parking loss and zoning non-conformity should be made, his adjustments of -5% for each are too great, and overly reflect the minimal impact that the non-conformities and parking loss provide. With respect to the loss of parking, a more accurate negative adjustment would measure the proportional loss of two to three parking spaces relative to the pre-existing number of spots. Similarly, Claimant's appraiser has overly adjusted for the loss of aesthetics and zoning non-conformity. I find a total adjustment for both factors should be a -8% rather than the -10% proffered by the appraiser.

With this in mind, I will now examine Claimant's appraiser's adjustments to the same properties after the taking. In Sale #4, the adjustments remain the same except with respect to utility/parking for which he now makes no adjustment, and for a -5% deduction for aesthetics/conformity, thus showing a net 15% deduction. As noted above, the total adjustment for these factors should be -8%. Additionally, I modified the comparative improvement size in the before, and find the same additional modification appropriate in the after. Thus applying the same modification for improvement size that I made in the before, and the additional -8% adjustment in the after, the net adjustment to Sale #4 in the after should be -18%, leaving its adjusted value in the after at $120.27 (per square foot).

The only modifications to the adjustments in Sales #5 and #6 proposed by Claimant's appraiser were individual downward deductions of 5% in the categories of utility/parking and aesthetics/conformity, for a total of -10%. I made no modifications in the before to either valuation. Thus, consistent with my analysis and correction noted above in the after taking with respect to Sale #4, the total deductions to each of these sales should only be an additional -8%. Thus as to Sale #5, there is a net +2% adjustment from $116.49 to $118.82 (per square foot). Sale #6 is now adjusted from $152.55 with a net -23%, to $117.46.

Accordingly, I find the supportable square foot value for improved sales after the taking to be $119.00 per square foot, and thus the total after value of this improved property is $1,383,732.00 or
$1,384,000.00 (r) ($119.00 per square foot multiplied by 11,628 square feet).
The difference in value of the improved property between the value before the taking of $1,512,000.00 and the value after the taking of $1,384,000.00 is
$128,000.00, representing the total amount of severance damages.
Claimant is awarded for the direct damage, as stipulated by the parties, the sum of $42,587.00, and damages resulting from the temporary easement of $4,557.00. Claimant is awarded the sum of $128,000.00 in consequential or severance damages.

Thus, Claimant is awarded the sum of
$175,144.00 with appropriate interest thereon from August 17, 1995, the date of the taking, until February 17, 1996, six months subsequent to the date of taking, and from April 15, 1997, the date of filing of the claim, to the date of this decision and thereafter to the date of entry of judgment herein, pursuant to CPLR 5001 and CPLR 5002; EDPL § 514; Court of Claims Act § 19(1); subject to Court of Claims Act § 19(4).
The award herein is exclusive of the claims, if any, of persons other than the owners of the appropriated property, its 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 the 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, sewer, and railroad lines.

All motions not heretofore ruled upon are now denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.


March 13, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




  1. [1]This is a somewhat irregularly shaped parcel, but both parties calculate the area within two square feet of each other and I adopt Claimant's calculation of 50,615± square feet.
  2. [2]Specifics are set forth in the Trial Transcript (TT) at page 2.