This is a claim, pursuant to §30 of the Highway Law and the Eminent Domain
Procedure Law, for partial appropriation of unimproved parcels of property owned
by Floyd and Rita Koronowski. The parties agree, and the Court so finds, that
the date of the taking was October 17, 1997, which is also the date of
valuation. The claim was timely filed with the Clerk of the Court on March 31,
1998, and duly served upon the Attorney General on March 30, 1998. The
appropriation maps entitled "Mohawk River Road - Marcy State Highway No. 296,
Oneida County, Map No. 91, Parcel Nos. 124, 125, 175, 176, 177, 178 and 179; Map
Parcels 181, 182, and 183; and Map No. 105, Parcel Nos. 188, 189, and 190" and
the descriptions contained therein are incorporated by reference and adopted by
the Court. This claim has not been assigned or submitted to any other Court,
tribunal or officer for audit or determination. The Court has made the required
viewing of the property.
At the time of this taking, Claimants were record owners of the property
located in the Town of Marcy, Oneida County, having acquired it by deed dated
May 14, 1990. The total acreage owned is approximately 83.812 acres which
includes a parcel improved with Claimants' residence and another parcel has 270
feet of frontage on Kennedy Road, which is separated from the rest by a railroad
track and these parcels were considered separate economic units by the State's
expert, Richard J. Stropp, III, and were not used in his valuation process. His
appraisal dealt with the remaining property, approximately 80. 374 acres of
agricultural land. Similarly, in his valuation of the property before the
taking, Claimants' expert, Paul K. Hatzinger, considered approximately 80 acres
although his sketches seem to include the land fronting Kennedy Road across the
railroad tracks. The Court, by virtue of the acreage both appraisers valued,
will deem the two unaffected parcels as separate economic units that were not
affected by the taking.
The subject property is situated on the easterly side of Route 291
approximately one-half mile north of the intersection with Route 49 and is best
described as "L" shaped. There is frontage on Route 291, the northwesterly side
of the affected parcel, of 1483± feet and frontage in the northerly side
along Jones Road of 420 feet ending at the Claimants' residence parcel which
also fronts Jones Road. Cutting through the property is an overhead power
easement held by the Power Authority of the State of New York (hereinafter
PASNY) and running from the northeast corner just south of the railroad tracks
to the southwest corner. The easement covers
approximately 12.17 acres. There is a barn on Route 291 which both parties
agreed added no value to the property. Public utilities consisting of electric,
telephone, natural gas, water and sewers are available along Route 291 and Jones
Road. The property is in an R-20 residential zoning district. That zoning
classification allows agricultural use, single family dwellings with enclosed
accessory building use and accessory apartments (2); with site plan review it
would also allow a home occupation, professional residence/office; public
outdoor recreation, school, public utility substation, religious institution,
and/or a community center. A single family dwelling requires a minimum lot size
of 20,000 square feet with a maximum lot coverage of 20 percent, and a minimum
width of 100 feet. The front set back is 80 to 100 feet, the side yard minimum
is 15 feet with a total minimum requirement of 40 feet, and the rear yard
minimum is 50 feet.
The experts differed in their assessment of the property. Mr. Hatzinger,
Claimants' expert, divided the subject parcel into 55 acres of level meadowland
and 25 acres of pasture/low land which he also described as waste. Mr. Stropp,
Defendant's expert, allocated the property as 68.4± acres fee and
12.2± as encumbered by the PASNY easement.
The State appropriated the Claimants' property for construction of a collector
roadway running easterly from Route 291 then turning southerly and continuing
onto the property contiguous to Claimants'. The State appropriated .114
acres in permanent easements and 5.356 acres in fee with .956 acres being inside
the PASNY easement.
Claimants' expert, Mr. Hatzinger, determined the highest and best use before
the taking as suburban residential
the zoning, topography and neighborhood. To place a fair
market value on the property, Mr. Hatzinger used five sales occurring between
December 1994 and November 1998, with adjustments being made on a dollar basis.
The Court finds the adjustments to sales 3 and 4 to be too great for use in
valuing the subject property.
Each of the comparable properties used had what Mr. Hatzinger termed "waste"
areas. After adjustments, he arrived at a per acre value for the subject
property of $2,200 for the 55 acres of land available for residential
improvement and $100 per acre for the 25 acres of waste land, totaling $123,500
as his before value.
The State's appraiser, Richard J. Stropp, III, found the "before" highest and
best use to be agricultural/recreational with residential development potential.
Mr. Stropp also used the comparable sales method making adjustments to each sale
using a percentage change. The sales used were between August 1990 and October
1996. Significant events occurred in the area which affected the economy
between 1990 and 1997.
The Court finds that
the sales in 1990 and 1992 (sales 4 and 5), each with a net 60 percent
adjustment, are too remote in time and dissimilar to the subject to be used in
valuing the subject property; and therefore, will not be considered. Nor will
the Court consider Sales 2 and 3, which had a 90 percent and 55 percent net
Mr. Stropp found the per acre value before the taking to be $2,550 for the fee
portion of Claimants' property and $255 per acre for the encumbered portion.
His value of Claimants' property prior to the taking totaled $178,000.
The Court finds the property's highest and best use before the taking to be
residential development in keeping with the opinions of both experts.
The appraisers had one sale in common. (Sale #5 in Claimant's
and Sale #6 in Defendant's
) Although adjustments were made
for different reasons, the Court will accept the adjusted figures for valuation
purposes. The price per acre of all of the comparable sales considered by the
Court range from $2,091 to $2,829. The Claimants had a price per acre of $2,200
and the Defendant calculated it be $2,550.
Based upon the accepted sales the Court finds the pre-value per acre to be
$2,350. The value per acre before the appropriation takes into account that
some of the parcel is less than desirable or physically inappropriate for
The Court finds that the PASNY easement should be valued at 10 percent of the
value of the usable, unencumbered land in agreement with the State's expert.
The Court finds the value of Claimants' property to be $163,583.50 (R). (68.393
= $160,723.55.; 12.17 x 235 = $2,859.95)
After the appropriation, the property's highest and best use, according to
Claimant, remained suburban residential. After the taking, The Claimant's
position was that due to the shape and loss of access, and based upon the
comparable sales, the per acre was reduced to $1,400 but the $100 per acre
value for wasteland was maintained. The Claimants' expert added 8 acres on
the property's southeasterly side to the waste area as unusable because it is
too narrow in places to build a residence that would comply with the zoning set
back requirements. He testified that in some spots it was less than 100 feet
wide which would preclude residential
development under the existing zoning requirements. The Claimant testified that
this strip measured about 100 feet at its narrowest. An R-20 residential zone
requires a minimum front yard of 50 feet and a minimum back yard of 50 feet
which restricts the residential possibility in certain areas. Because
Claimants' appraiser treated the PASNY easement property as unencumbered, he
used the full acreage of the appropriation in determining direct damages. This,
the Court finds, was an error.
The State's appraiser also found a diminution in overall value after the taking
although he found the highest and best use changed to residential development
specifically a subdivision due to the road the State had constructed through the
property.. The per acre value he determined was $2,180. Because of the road,
Mr. Stropp found that the indirect damages the appropriation caused to
Claimants' remaining property were offset by the benefit of more road frontage.
Although he agreed the road placement resulted in irregularly shaped parcels of
land which negatively impacted the value of the property, he testified that the
additional road frontage created the possibility of a less expensive subdivision
because a road through the property already existed.
The question of indirect damages and Defendant's claim of special benefit are
intertwined as the value of a special benefit can only be used to offset
indirect damages (Chiesa v State of New York, 36 NY2d 21) The Court finds
that the State failed to prove that its "after" highest and best use was to
subdivide the property.
It is well settled law that a party asserting a different highest and best use
from the one existing at the time of the condemnation has the burden of proving
a reasonable probability that the highest and best use it asserts would or could
have been made of the subject property in the
near future. (Thompson v Erie Co., Indus. Develop. Agency, 251 AD2d
1026; Mtr. Of Rochester Urban Renewal Agency v Lee, 83 AD2d 770; See,
Matter New York City [Broadway Cary Corp.], 34 NY2d 535, rearg. denied, 34
The highest and best use of the property is defined as the reasonably probable
and legal use of vacant land or improved property, which is physically possible,
appropriately supported, financially feasible, and that results in the highest
Both appraisers agreed that the
highest and best use must meet four criteria:
The State's appraiser acknowledged in his report that economic conditions had
declined in the area since 1990 and that the number of building permits issued
can be indicative of market demand. In his appraisal, Mr. Stropp noted:
"Building permits for new single-family residences in the Town of Marcy dropped
from 26 in 1991, 1992 and 1993 to 10 in 1994. In 1997 (year of vesting) the
number was 7."
He also noted that already
approved subdivisions nearby have lots available which curtails the subject
property's residential potential. This information undermines the State's
conclusion that the highest and best use of Claimants' property after the taking
would be subdivision and refutes its attempt to prove its economic feasibility.
(Matter of New York City [Broadway Cary Corp
], 34 NY2d 535; Matter of
City of New York [Shorefront High School-Rudnick]
, 25 NY2d 146)
Furthermore, a subdivision (more than three lots) would require site plan
approval by the Town, and if there were more than 50 lots, there are State
health requirements that must be met. There was no evidence to establish the
possibility of receiving site plan approval thereby rendering the State's
expert's opinion speculative. (Matter of City of New York [Shorefront High
School-Rudnick], supra at 146.)
Because the State's "after" values were based upon an erroneous highest and
best use, the Court rejects its valuation process and the comparables previously
rejected for the pre-taking analysis are rejected here for the same reasons.
The Court rejects the 85 percent upward adjustment for the new road and reduces
it to 10 percent. Therefore, for the State's Sale #1, the per acre value is
$2,137, and for Sale #6, the per acre value is $2,794.
Reviewing the Claimants' comparable sales, for after the taking, the Court
finds that the location adjustments due to the new road should not have been
included and that Sale #6 is not comparable. The values accepted by the Court
are $2,091 for Sale #1; $2,125 for Sale #2; $1,653 for Sale #3; $1,810 for Sale
#4; $2,398 for Sale #5; and $1,351 for Sale #7.
The Court finds the after value per acre of the subject unencumbered land to
be $2,115. The Court finds that the value of the PASNY easement remains 10% of
the value of the unencumbered land. The .956 acres of property appropriated
from the PASNY easement is worth $224.66 (R) and the 4.4. acres is worth $10,340
and the permanent easements (.114 acres) which lost 90 percent of the before
value are now $241.11, resulting in direct damages of $10,805.77. The Court's
figure is less than Claimants because Mr. Hatzinger's failed to discount the
value of the PASNY easement.
The after value the Court calculates as follows:
63.879 acres (fee) x $2,115 = $135,104.08; 11.214 ± acres (encumbered) x
212 = $2,377.37 and the permanent easement of .114 acres x 212 = 24.17 totaling
Direct damages $ 10,805.77
Consequential $ 15,272.11
Total award: $ 26,077.88
In accordance with the foregoing, Claimant is entitled to a total award of
$26.077.88 with appropriate interest from October 17, 1997, to the date of
decision herein, and thereafter to the date of entry of judgment pursuant to
CPLR 5001 and 5002, and the Court of Claims Act §19(1).
The award to the Claimants herein is exclusive of claims, if any, or persons
other than the owners the appropriated property, their tenants, mortgagees, and
lienors having any right or interest in any stream, lake, drainage, or
irrigation ditch to 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 are exclusive also of 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.
LET JUDGMENT BE ENTERED ACCORDINGLY.