New York State Court of Claims

New York State Court of Claims

KORONOWSKI v. STATE OF NEW YORK, #2001-018-077, Claim No. 98074


Case Information

FLOYD KORONOWSKI and RITA A. KORONOWSKI The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: MARTIN ROWLEY, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 31, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


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 No. 101,

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[1] based upon 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.[2] 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 adjustment, respectively.

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 appraisal[3] and Sale #6 in Defendant's appraisal.[4]) 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 residential development.

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 NY2d 916.)

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 value.[5] Both appraisers agreed that the highest and best use must meet four criteria:
  1. Legally permissible;
  2. Physically possible;
  3. Financially feasible; and
  4. Maximally productive.
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."[6] 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 $137,505.62.
Before value $163, 583, 50
After Value 137,505.62

Difference $ 26,077.88
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.


March 31, 2001
Syracuse, New York
Judge of the Court of Claims

[1]By this he meant a few (3) homes on large lots fronting Route 291 where the public utilities exist.
[2]Exhibit A, Appendix B.
[3]Exhibit 1
[4]Exhibit A.
[5]Exhibit 1 and A.
[6]Exhibit A, page 14.