New York State Court of Claims

New York State Court of Claims

FREEMAN v. STATE OF NEW YORK, #2002-018-147, Claim No. 100210


Court granted judgment in favor of claimant after appropriation trial

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Devorsetz, Stinziano, Gilberti, Heintz & Smith, P.C.By: SIDNEY DEVORSETZ, ESQUIRE
Defendant's attorney:
Attorney General of the State of New York
By: MARTIN ROWLEY, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

The claimant seeks damages, both direct and consequential, pursuant to Highway Law §30 and the Eminent Domain Procedure Law, resulting from the defendant's partial appropriation of real property. The property is located on State Route 92 (also known as Highbridge Road) in the Town of Manlius in Onondaga County. The taking occurred when the State replaced the bridge over Limestone Creek on Route 92. This claim has not been assigned or submitted to any other Court or tribunal for audit and determination and was timely filed on April 21, 1999. The descriptions of the appropriated property, as reflected in Map No. 56, Parcel No. 64 and Map No. 59, Parcel No. 67, are filed in the Onondaga County Clerk's Office, copies of which are attached to the claim are adopted by the Court and incorporated herein by reference. The Court has made the required viewing of the property which is the subject of this claim.

Route 92 runs, generally, in an east-west direction and the bridge requiring replacement spanned Limestone Creek. Claimant's westerly property line is the center of the creek and her northern property line is Route 92, with road frontage of approximately 821 feet. Claimant acquired title to the property, jointly with her husband, Cyril Freeman, by deed from Nancy Woodson Spire, filed in the Onondaga County Clerk's Office on September 3, 1982. She took sole title on December 13, 1995, by the filing of a quitclaim deed from Cyril Freeman to claimant.

The parties agree that the date of appropriation was March 27, 1998.

The subject property was 23.47 acres improved with a residence/business and two unattached storage buildings.

Claimant and her husband reside in the ranch-style building which has over 7,000 square feet of space, including the three-car, attached garage but not including the basement. Claimant runs an interior decorating business from the location as well. The property has dual zoning. From Route 92 south to a depth of approximately 200 feet, the property is zoned Residential 1. The balance of the property is zoned Restricted Agricultural. The residential zoning permits a professional office in the residence upon receipt of an Accessory Use Permit which claimant has been granted.

In determining the highest and best use, the claimant's appraiser, Harlan LaVine, focused on the residential nature of the property while the State's appraiser, Donald A. Fisher, concentrated on the commercial aspect of it. A significant amount of testimony addressed the amount of floor space in the building which was used for claimant's business as opposed to residential use.[1]
The different focus resulted in each expert using comparable sales that had substantial variations from the subject property. Mr. Fisher used commercial buildings as comparables in his valuations although the zoning would preclude such use. There are occasions when courts have found that a reasonable probability of a zoning change exists and thereby consider a highest and best use not allowed by the current zoning ordinance (Masten v State of New York, 11 AD2d 370, aff'd 9 NY2d 796; Mtr of Town of Islip, 49 NY2d 354). In this case, however, the State has failed to prove such a probability and in fact, its appraisal indicates just the opposite:
Subject's neighborhood is utilized almost exclusively for

single-family residential uses. Some home occupation

businesses exist, such as a dentist office and an interior

decorating store, that take advantage of NYS Route 92's

traffic flow and exposure. However, area zoning prohibits

high density commercial uses, limiting future expansion of

non- residential tenants.[2]

Claimant moved to strike the State's appraisal in total on which the Court reserved decision. The Court now finds that one valuation method used by the State, that of income capitalization, is inappropriate, as was the use of strictly commercial buildings in the sales comparison method. The Court hereby strikes those portions of the State's appraisal and the testimony relating thereto (Monticello Airport, Inc., v State of New York, 184 AD2d 876). The appropriate valuation method is the sales comparison approach.
Initially, the experts divided the property into economic units with claimant's appraiser using 7.6 acres that borders Route 92 as one unit, and the remaining portion,15.82 acres of lowlands, as another. The larger unit was unaffected by the taking. The State's appraiser divided the road frontage portion into two economic units of three acres ± each. One unit contains the structure and improvements, the other being vacant land. The balance of the property, again, was unaffected and, therefore, was not considered. The Court adopts the State's breakdown of the property's economic units; the improved 3± acre lot, the vacant 3± acre lot, and the remaining unaffected lowlands.

In valuing the property before the appropriation, the appraisers first determined its highest and best use. The claimant's expert, Mr. LaVine, found the highest and best use of the improved lot (State's economic unit #1) to be its existing use; a residence with a permitted home occupation. The State's expert, Mr. Fisher found it to be "its current use, for commercial retail (with residential use)."[3]
He included comparable sales of residential properties and commercial properties. As noted above, the Court has stricken the commercial valuations as irrelevant because of the zoning restrictions. The Court finds the improved parcel's highest and best use before the taking to be its current use of residential with an authorized accessory use. The highest and best use of the second vacant parcel is, as Mr. Fisher determined, residential development.
Claimant's expert's "before" comparables for vacant land were used to determine the value of a 7+ acre parcel. Because the Court adopted the smaller economic units of the State, the claimant's adjustments are excessive; therefore, all three were adjusted downward for lot size. The changes are reflected below:[4]

Sale Claimant's Lot Size Claimant's Adjusted Court's Lot Size Court's Adjusted
Values Per Acre
Values Per Acre
#4 -$12,000 $48,078 - $7,000 $53,078
#5 -$16,800 $50,364 -$11,000 $56,164

#6 -$ 7,400 $33,337 -$ 5,000 $35,737

Claimant's other adjustments are reasonable. The rear land portion of claimant's expert's appraisal is superfluous as that portion of the property was unaffected by the taking.
The residential comparable sales for vacant land used by the State were all adjusted for location, size and utilities. Sale #3 was also adjusted for shape and zoning. The Court finds the adjustments for sales #1 and #4 to be appropriate. The location adjustment for sale #2 is too large and should be reduced from -50% to -35%. The Court further finds that no location adjustment should have been made on sale #3 and the zoning adjustment should be a -30%. Below is a summary of the net adjustments and adjusted per acre value.

Sale State's Net State's Adjusted Court's Adjustment Court's Adjusted
#1 -45% $51,333 -45% $51,333
#2 -65% $36,157 -50% $51,653
#3 -20% $56,980 -30% $49,857.50
#4 -45% $52,027 -45% $52,027

The Court finds that the State's Sale #3 is most similar to the subject property and gives its value greater weight. The "before" land value of the subject property, economic unit #1 for the land only is $50,000 per acre or $150,000. Since economic unit #2 would be valued by using the same vacant land comparables, the value per acre of economic unit #2 would also be $50,000 per acre or $150,000.
Reviewing claimant's improved sales comparisons,[5]
the Court finds that given the subject property's partial use as a business, and the fact that a portion of the dwelling is used exclusively for the business, the adjustments made for dwelling size were excessive on all three sales. Due to the Court's adoption of the State's economic units, the relevant adjustments must reflect the smaller lot size. Therefore, the following changes should be made:
Sale #1: Claimant's expert adjusted the value of this property for dwelling size; however, he failed to consider that a portion of the subject property is used exclusively for the accessory use. Therefore, the Court finds the dwelling size adjustment should be +$80,000. Given the smaller lot size the Court had adopted, there should be a lot size adjustment of -$30,000 resulting in an adjusted value of value is $420,000.
Sale #2: For the reasons already stated, the dwelling size adjustment on this property should be reduced from +$175,700 to a +$100,000. The lot size adjustment should be reduced from +$80,000 to +$5,000 resulting in an adjusted value of $472,250.
Sale #3: For reasons stated above, the dwelling size adjustment should be reduced from +$189,900 to +$120,000; the location adjustment should be -$50,000 instead of -$35,500 and the lot adjustment should be reduced from $100,000 to +$87,000. The resulting adjusted value of the property is $436,000.
Sale #1 most closely reflects the subject property so greater weight is given to its adjusted value. The Court finds economic unit #1's "before" value as improved to be $430,000; $150,000 for the land value and $280,000 is the value of the improvements. Adding the value of economic unit #2 of $150,000, the total before value of the subject property is $580,000.

The State appropriated .442 acres of land running almost the full length of claimant's road frontage along Route 92; .3101 acres was taken from economic unit #1, and .1319 acres from economic unit #2. The direct damages to the land based upon a vacant land value of $50,000 per acre for .442 acres is $22,100.

The appropriation resulted in no change to the highest and best use: residential with an authorized accessory use for parcel #1 and residential development for parcel #2. The parties disagreed on whether or not the remaining property suffered consequential damages as a result of the appropriation. Claimant and her husband testified that there is significantly more noise and dirt in their home from Route 92 since the completion of the bridge reconstruction due to the lost trees and shrubs. They also lost the privacy the vegetation provided. Claimant also seeks consequential damages to the remainder due to the increased grade[6]
of the roadway. The result after the appropriation is an upward slope when leaving the driveway, which also reduces the residence's privacy.
The State's position relies upon the highest and best use of the property being commercial. Mr. Fisher determined that there were no consequential damages to the remainder. He testified that the house was visible from the road after the bridge reconstruction but was not before. In his appraisal he said "[t]he subject's primary access remains at grade and the net effect of the appropriation actually improves the site's visibility. While this would potentially lessen the appeal of the property for residential purposes, the subject's retail operation has benefitted."[7]

He also concluded:
From an indirect standpoint, the loss of screening is

potential consideration due to a reduction in appeal
for the residential component of the property. However,
the primary function of the building is retail, and the
improved visibility resulting from the appropriation
offsets any direct damages.[8]

The Court's finding of the highest and best use after the appropriation results in a rejection of Mr. Fisher's conclusion. In fact, the type of home occupations allowed by the zoning, in general, do not necessarily benefit by improved visibility.[9]

The State's position that the change in grade also had no negative effect on the remainder is even weaker. Mr. Fisher prepared two project appraisals for the State before the construction began. In both, he concluded the claimant's property would suffer consequential damages. When those reports were prepared, the State anticipated no grade change.

After the work was complete and the grade change was evident, he concluded, despite the actual grade change, no consequential damage could be assessed. The Court was unconvinced that, as he proffered, the later appraisal[10]
took into account the actual result of the appropriation as opposed to the anticipated result of the earlier ones. The Court finds there to be indirect damages to the site due to loss of setback, loss of privacy, the added noise and disruption, and a change of grade (Dennison v State of New York, 22 NY2d 409)(City of Yonkers v State of New York 40 NY2d 408; Manlius Ctr. Rd. Corp., v State of New York, 49 AD2d 685; Monser v State of New York, 96 AD2d 702).
The total "before" value of the affected parcels, economic units #1 and #2, as previously found by the Court, was $580,000. The land alone has been valued at $300,000, leaving the value of the improvements as $280,000.

In his "after" valuations, claimant's appraiser adjusted the comparable properties for location and topography. In his testimony, he indicated that those adjustments are related to the change in grade of the road. Although the topography adjustment includes the loss of the barrier of trees and shrubs, part of that adjustment and the location adjustment were made because of the resulting grade change.

The "after" valuations for vacant land made by claimant's appraiser[11]
used the same three properties that he used in the "before" situation. As previously noted, his adjustments must be reassessed in light of the economic units the Court adopted, as well as his use of two adjustments for the change in grade. The following changes should be made:
Sale #4: The adjustment for location should be eliminated, the lot size adjustment should be changed from -$12,000 to a -$7,000 and the topography adjustment should be reduced to a -$2,000. The resulting value per acre is $51,078.
Sale #5: The location adjustment should be eliminated, the lot size adjustment should be reduced from -$16,800 to -$8,800, and the topography adjustment should be reduced from -$13,400 to a -$4,000. The resulting value per acre is $54,364.

Sale #6: The adjustment for lot size should be -$4,400 instead of -$7,400, the location adjustment is acceptable. The resulting value per acre is $28,937.

The values per acre of the three properties, with these adjustments are: $51,078; $54,364 and $28,937, respectively. Based upon these values, the Court finds the per acre value of the vacant land after the taking to be $45,000.

In determining whether there was any consequential damages to the improvements, the Court reviewed the claimant's expert's appraisal[12]
and made the following changes based upon the reasoning set forth above:
Sale #1: The location adjustment should be reduced from -$75,000 to -$40,000 and a lot size adjustment of -$30,000 should be added. The topography adjustment of -$56,250 should be reduced to -$30,000 and the dwelling size adjustment should be +$80,000. The adjustment price of this property equals $350,000.

Sale #2: The location adjustment should be reduced from -$141,250 to -$100,000; the lot size adjustment should be +$5,000 instead of +$80,000 and the topography adjustment should be -$25,000. Additionally, the dwelling size adjustment should be changed from +$175,700 to +$100,000. The other adjustments are acceptable. This results in an adjusted value of $403,750.

Sale #3: The location adjustment should be reduced from -$88,750 to a -$15,000; the lot size adjustment should be +$50,000 instead of +$100,000; the topography adjustment should be reduced from -$53,250 to -$30,000, and the dwelling size adjustment should be reduced from +$189,900 to $120,000. The other adjustments are acceptable. The adjusted value of this property is $404,000.

The Court finds that the after value of the residential and land portion of economic unit #1 to be $380,000. The Court assessed no damages to the commercial portion of economic unit #1. Based on the after value of $45,000 per acre, the land value of the remaining 2.6899 acres is $121,045.50, leaving a value of $258,954.50 for the improvements. The damages to the subject property are as follows:

"Before" value of land:
6 acres at $50,000 per acre $300,000.00
"After" value of land
5.558 acres @ $45,000 per acre $250,110.00
Improvements 258,954.50
Total Damages: $ 70,935.50


Direct .442 acres @ $50,000 per acre $ 22,100.00


Land $ 27,790.00

Improvements $ 21,045.50

In accordance with the foregoing, the claimants are hereby awarded $70,935.50, with appropriate interest from March 27, 1998, to September 27, 1998, and from April 21, 1999 to the date of the decision herein, and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002 of the Court of Claims Act §19(1).

The award to the claimant herein is exclusive of claims, if any, of persons other than the owners of the appropriated property, their tenants, mortgagors, and lienors having any right or interest in any stream, lake, drainage, and 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 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. All motions not heretofore ruled upon are hereby denied. LET JUDGMENT BE ENTERED ACCORDINGLY.

June 28, 2002
Syracuse, New York

Judge of the Court of Claims

[1]Some rooms had sample decorations but are also used by claimant as part of her home, giving them a dual purpose. Nonetheless, some of claimant's business is conducted away from the subject property since the business has significant warehouse space, and business is often conducted at the customer's property. Hence, the gross sales generated by the business are not reflective of the level of commercial use of the property.
[2]Exhibit C, p. 13.
[3]Exhibit C, page 34.
[4]These three sales are referred to as #1, 2, and 3 in the State's appraisal, and as #4, 5, and 6 in claimant's appraisal. The Court will use #4, 5, and 6.
[5]See Exhibit 4A, p. 55.
[6]The grade increase varies up to four feet.
[7]Exhibit C, p. 56
[8]Exhibit C, p. 57
[9]They are the type of activity for which customers or clients would most often obtain an appointment beforehand.
[10]Exhibit C

[11]Exhibit 4-A p. 68. The appraisal, Exhibit 4-A on page 68 refers to the sales by numbers 1, 2, and 3; however, the properties to which they correspond are 4, 5, and 6 on pages 40, 42, and 44 respectively.

[12]Exhibit 4-A, p. 73.