New York State Court of Claims

New York State Court of Claims

JAFFIN v. THE STATE OF NEW YORK, #2003-010-046, Claim No. 104314


Synopsis


Case Information

UID:
2003-010-046
Claimant(s):
JANET M. JAFFIN, AS TRUSTEE
Claimant short name:
JAFFIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104314
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
SIEGEL, FENCHEL & PEDDY, P.C.By: Robert G. Litt, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 17, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is a timely filed claim for the partial appropriation of claimant's property and a temporary easement pursuant to Eminent Domain Procedure Law and § 30 of the Highway Law, in a proceeding entitled "Broadway-Hastings-Dobbs Ferry-Mount Pleasant-Tarrytown-North Tarrytown" S.H. No. 9206, as reflected in Map No. 27, Parcel No. 29 (permanent appropriation), and Map No. 28, Parcel No. 30 (temporary easement). Vesting occurred on May 25, 1999 and the temporary easement ran from May 25, 1999 until February 28, 2002. Personal service was made on July 1, 1999. The claim was filed on May 22, 2001 and service on the Attorney General's office was on May 21, 2001. An Amended Claim was filed on April 25, 2002. The appropriation maps and description contained therein, which were filed in the office of the Westchester County Clerk on May 25, 1999, are adopted by the Court and incorporated by reference. The Court has made the required viewing of the property which is the subject of this claim. This claim has not been assigned or submitted to any other court or tribunal for audit or determination.
The subject property is essentially rectangular shaped and located on the southeast corner of Ashford and Walgrove Avenues in the Village of Dobbs Ferry, Town of Greenburgh, Westchester County, New York. At the time of the taking, the property consisted of an operating gasoline service station on 8500 ± square feet of land improved with a 1319 square foot building
. The property had frontage along Ashford and Walgrove Avenues. The gas station had two pump islands, parallel to and accessible via the two main streets and is situated at a busy intersection with two other gas stations and a church. Underground, there were three single wall 8000 gallon fuel storage tanks and one 4000 gallon storage tank.
A gas station has operated on the site for over 50 years. Although the property is not presently zoned for a gas station, it was permitted to operate as a legal nonconforming use. There was a lease dated January 23, 1981 between
claimant and Power Test Petroleum Distributors, Inc. (Power Test) for a term of 20 years plus two, ten year renewal options. The lessee, Power Test, is now a subsidiary of Getty Petroleum Corp. (Getty) which, at the time of the taking, operated another Getty gas station on the southwest corner of the intersection. Thus, two of the three gas stations at the intersection had the same owner.
The parties stipulated that the before value of the property was $457,000.
The permanent taking consisted of a strip of land 281 ± square feet along Ashford Avenue, a main thoroughfare. The parties also stipulated that the direct damages from the taking were $10,000. The temporary easement consisted of 1438 ± square feet bordering Ashford and Walgrove Avenues. Prior to the taking, there was no curbing on these streets. After the taking, curb cuts were added, channeling access to the property from each street.
Claimant maintains that the taking and the curb cuts made it impossible to continue operation of the gas station. Specifically, the Ashford Avenue pumping island could no longer safely function because it was too close to the property line and the pumps could not be repositioned on the property. Additionally, the curb cuts restricted access for customers and fuel deliveries. Claimant seeks compensation for this loss as well as the inventory related to running a gas station. Claimant also seeks the annual rental loss for the entire property arguing that the temporary easement blocked access to all parts of the property throughout duration of the easement.
Defendant maintains that claimant is only entitled to direct damages because a gas station could still be operated on the site after the taking. Defendant also points to 1988 Federal Regulations which required claimant to replace the existing single wall fuel tanks with double wall tanks by 1998. Defendant argues that claimant would have had to undertake these costs anyway to continue as a gas station on the site. Therefore, those costs should not be chargeable to defendant. Additionally, defendant noted that the New York State Department of Environmental Conservation (DEC) recorded Spill No. 98-09797 which required action to be taken regarding this site. The tenant terminated its gas station operations near the end of September 1999. On February 23 and 25, 2000, the Tyree Organization, at Getty's expense, removed the tanks. The pumping islands were removed prior to any of the experts' view of the property. Defendant also argues that the property was otherwise accessible during the term of the temporary easement and claimant is not entitled to the full annual rental.
Steven Schneider, a civil engineer, testified on behalf of
claimant. He maintained that after the taking, there was insufficient room for a car to use the side of the Ashford Avenue pumps nearest the street and that it was not possible to move the pump island to another area on the site. Schneider testified that, prior to the taking, there was 13.20 feet between the property line and the pump island and after the taking the aisle at its narrowest point was reduced to 9.76 feet. However, Schneider could not establish the precise location of the pump island.[1] New storage tanks were installed on the site in 1981. This discredits Schneider's calculations. Moreover, according to Schneider, the island fell only two and a half inches short of 10 feet, the distance supposedly required by industry standards. At trial, Schneider failed to specifically identify any industry standards, nor were they set forth in his report. Schneider also maintained that the curb cuts installed after the taking made it harder for cars to access the station. This, as well as the shortage of two and one half inches, he concluded, resulted in the closure of the station.
In addition, Schneider prepared a list of equipment,
including double wall tanks, typically found in gas station installations. He then estimated replacement costs for all of the items. Several problems were obvious in using this list for a basis for damages. In his report, Schneider incorrectly assumed that the tanks were "conforming to existing environmental regulations" (Ex. 5). At trial, Schneider conceded that he was aware of the environmental regulations regarding petroleum storage tanks and that if there were single wall tanks, they would have had to be removed for the station to continue in operation. He eventually conceded that the tanks were in violation of the applicable law on the day of the taking. Nonetheless, he assessed the value of the equipment based upon double wall tanks and calculated the cost of replacing the tanks at $119,772.
It should be noted that the 1981 lease gave the tenant the right to terminate if access to the premises is condemned or restricted by a public authority (Ex. D). There is no evidence that the tenant ever exercised this option.

Bob Sterling, a certified General Real Estate Appraiser, testified on behalf of
claimant. He stated that the highest and best use of the property prior to the taking was as a gas station. Sterling further opined that the highest and best use after the taking was another commercial use which would require extensive renovation to the existing building, as well as removal of the gas pumps and underground tanks. Based upon comparative sales of small commercial properties and taking into account the site preparation adjustments and lost revenue, Sterling concluded that the after taking value of the property was $225,000. He factored the cost to remove the tanks in assessing the adjustment to the comparable properties.
Sterling also presented a contract
dated December 21, 2002 for the sale of the property at $300,000 (Ex. 21). He acknowledged that there was a side agreement obligating claimant to pay the cost of removing the existing improvement. Accordingly, the $300,000 represented payment for the vacant land.
In calculating damages, Sterling adopted Schneider's $113,525[2]
for the cost of the fixtures. This ignored the fact that in 2000, Getty paid the Tyree Organization to remediate the oil spill and remove the underground storage tanks. Moreover, as Sterling noted, pursuant to the lease, the fixtures belonged to the tenant. Sterling estimated that the costs for replacement of the pump islands and underground tanks would be $250,000. He conceded that these expenses would have had to be incurred anyway whether or not the property was the subject of a partial appropriation.
Sterling concluded that it was no longer feasible to have a gas station on the property because of the land reduction and the impact of the new curbing on cars queuing on Ashford Avenue. Sterling relied upon Schneider's report as well as a field report prepared by Mark Abrahamer, R.A. on June 8, 2000. Sterling had no first hand knowledge of the findings of this field report, which was provided to him by
claimant's counsel. Accordingly, this Court strikes the field report from the record.
Sterling rejected the concept that the gas station could operate with only the Walgrove Avenue pump. He testified that the station could not survive as a single pump station. Although, sale number 3 in his appraisal was a single pump station, that station, Sterling maintained, was on a primary street. Here, if the Ashford pump island was removed, the remaining island on Walgrove would be on a secondary street.

Sterling acknowledged that pursuant to the Dobbs Ferry zoning code, after six months of non-operation as a gas station, a prior nonconforming use would have to be brought into full conformity with the zoning requirements.

Sterling concluded the total damages were $240,000 for the loss of the land value, $113,525 for the fixtures and $23,063 for the value of the temporary easement. There was no testimony regarding the impact of the temporary easement. Sterling assumed that access to the site was impossible during the period of the easement.

Thomas B. Vanderbeek, a civil engineer licensed
in New York, New Jersey and North Carolina, testified on behalf of defendant. Vanderbeek's areas of expertise included planning and development. He testified that, over the past twenty years, he has both reviewed and designed site plans for approximately ten gas stations. These plans were prepared in accordance with local municipal zoning codes and submitted for review and approval by that municipality. Vanderbeek testified that his role in the planning and design has required consideration of the maneuverability of vehicles throughout the site.
With regard to this case, Vanderbeek reviewed the relevant documents and visited the site. He
considered the movement of vehicles on Ashford and Walgrove Avenues as affected by the alteration. He analyzed traffic traveling in both directions on each street and maintained that either there had been no change or that an illegal action had been eliminated. Prior to the curb cuts, cars made illegal turns in the intersection. Vanderbeek concluded that the appropriation had no effect on legal vehicular access from any direction and that the taking did not require a change in the use of the gas station (Ex. B, p. 6).
Using the scale on the taking map, Vanderbeek measured the distance from the new property line to the pumping island. Applying the scale of one inch to five meters, he calculated the distance at .62 inches equaling 3.1 meters equaling 10.17 feet or approximately 10 ± feet. While agreeing that
a computer-aided design and drafting program would be more accurate, Vanderbeek explained that this methodology could not be utilized without having the interior measurements which were not available. In any event, he explained that pumps are set back at least six inches on an island. Thus, even accepting Schneider's measurement of 9.76 feet from the property line to the pump island, the actual pump would be 10.26 feet from the property line. Moreover, fire codes calling for 10 foot set back from the property line referred to dispensing devices, rather than the pumping islands. Vanderbeek also testified that, contrary to Sterling's testimony, there were no mandated industry standards except that the design should accommodate a vehicle less than eight feet wide.
Vanderbeek explained that the DEC Spill No. 98-09797, referred to in a letter from Tyree to the Village of Dobbs Ferry , meant that an oil spill had been reported requiring action (Ex. B, attachment 4).
He testified that, prior to the taking, the underground tanks were not in compliance with environmental regulations and required removal.

Kenneth Golub, a professional appraiser, testified on behalf of
defendant. Golub concluded that the highest and best use of the vacant property, both before and after the taking, was as a single tenant, commercial building, two stories high. He noted that the gas station was possibly the highest and best use before, but that it was an obsolete, third rate, gas station which could not compete effectively. Golub explained that gas stations have changed in the last 30 years with retailers moving to larger self-service, high volume locations. At the subject intersection, the appropriated property was the least attractive corner. While this might have been a good spot 50 years ago, increased traffic had created problems with vehicles backing up on the road. Golub also noted that when Power Test acquired Getty in 1985, two stations owned by the same company were then competing across the street from one another. Further, the Power Test brand was being phased out so that by 1999, only a few Power Test stations remained.
Golub testified that in 1981 Power Test assumed occupancy and installed its steel, single wall, underground tanks. These tanks had to be replaced by December 22, 1998 to conform with environmental regulations. Significant capital would have been required for a gas station to continue operations. It was this factor that caused Golub to feel ambivalent about the highest and best use prior to the taking. The same ambivalence continued after the taking.

Golub concluded that there was no loss of function of the remaining property and that the only loss was the value of the land taken. He determined that this damage was $10,000, the difference between the value of the land before ($450,000) and after ($440,000). In Golub's view, the highest and best use remained the same. The property was still suitable for either a gas station or other commercial use.

Although Golub is not an engineer, he scaled the measurements himself from the taking map. He determined that the set back from the property line to the pump island on Ashford Avenue had been reduced from 13 to 10.5 feet.

As to the temporary easement, although Golub did not know the access points during construction, he testified that access could not have been totally blocked. Rights to use the property were reserved to the owner under the taking (Ex. 3, p. 2). Getty had the right to terminate the lease if there had been a change in access and apparently this was not done.
Analysis
Direct Damages
As previously noted, the parties have stipulated to the amount of $10,000 in direct damages for the partial appropriation.
Claimant is awarded this amount with statutory interest thereon from the vesting date of May 25, 1999 to January 1, 2000 and then from May 22, 2001 to the date of entry of this Decision and thereafter to the date of entry of judgment.

Consequential Damages
With regard to the claim for consequential damages, "[i]t is widely accepted that a partial taking does not itself cause a consequential loss *** Damages for such a loss must be based upon either the opinion of an experienced, knowledgable expert *** or on actual market data showing a reduction in the value of the remainder as a result of the appropriation" (
Chemical Corp. v Town of E. Hampton, 298 AD2d 419, 422 [citing Zappavigna v State of New York, 186 AD2d 557, 560]). Upon evaluation of all the evidence, including a viewing of the property, this Court concludes that claimant has failed to meet its burden of establishing that the partial taking and the curb cuts caused the property to no longer be valued at its pre-taking highest and best use as a gas station (see J.W. Mays v State of New York, 300 AD2d 545, 547 [claimant failed to carry its burden to furnish a basis from which a reasonable estimate of its purported consequential damages could be made]). Thus, whether the taking resulted in a change of value of the remainder of the property presented the Court with a credibility issue which the Court resolved in favor of defendant (see Chemical Corp. v Town of E. Hampton, supra at 423).
Specifically, the Court found that
Schneider's calculations were not reliable. Moreover, at best, Schneider maintained that his calculations established that the pump island was two and one half inches short of the ten feet required by industry standards. Schneider, however, did not support his conclusion with reference to any specified industry standards and Vanderbeek effectively refuted Schneider's conclusions. Schneider further maintained that the curb cuts limited access to the station and this resulted in the closure of the station. This conclusion was neither supported by the record nor the law (see Priestly v State of New York, 23 NY2d 152). "[T]he owner of the property is not entitled to damages incurred because access is no longer as direct as it once was or because the new or remaining access is less than ideal" (Bopp v State of New York, 19 NY2d 368, 372). Prior to the taking, the gas station operated despite the limited maneuverability available to its customers. It was not demonstrated that the curb cuts rendered access to the property unsuitable and insufficient in its utility as a gas station.
In sum, the Court did not find the opinions of
claimant's witnesses persuasive regarding the inability of the site to continue its operation as a gas station (see Chemical Corp. v Town of E. Hampton, supra [Court reasonably rejected opinion of plaintiff's appraiser and credited the evidence presented by the Town's appraiser]). Rather, the Court finds defendant's analysis in determining that the property could have continued as a gas station after the taking to be more acceptable (see Vassar Coll. v State of New York, 294 AD2d 427 [Court properly credited State's expert evidence that the highest and best use of the appropriated parcel remained unchanged after the taking]). Accordingly, claimant is not granted any award for consequential damages.
In light of the Court's finding that claimant has failed to prove that the taking and the curb cuts changed the value of the remainder of the property, the Court need not address
claimant's methodology for determining the property's after value. Nonetheless, the Court rejects claimant's methodology as unsound (see Zappavigna v State of New York, 186 AD2d 557, 561[record contains insufficient evidence to support an award of consequential damages]). Claimant argues that Sterling's determination of the after value of the property of $225,000 was confirmed by the contract of sale for the property entered into in December of 2002 for $300,000 (Ex. 21).[3] Contrary to claimant's position, the contract did not establish that the property had lost its utility as a gas station. Additionally, there was a side agreement which provided for the demolition of the improvement on the property. The evidence established that the tanks were not in compliance with environmental regulations and required removal. Further, Sterling conceded that the expenses for replacement of the pump islands and underground tanks would have been incurred whether or not the property had been the subject of a partial taking. Accordingly, there was no basis for figuring in the replacement of the fixtures in the calculation of the property's after value.
Temporary Easement
"The proper measure of damages for the taking of a temporary easement is the decrease in the rental value of the premises subject to the easement during the term of the temporary easement (sometimes referred to as the ‘rental value' of the easement) plus consequential damages, if there be any (citations omitted)" (
Great Atlantic & Pacific Tea Co. v State of New York, 22 NY2d 75, 89). Claimant failed to establish by sufficient evidence that the temporary easement had in fact blocked access to all points of the property throughout the duration of the easement. Indeed, there was no evidence as to how the easement particularly impacted access. In fact, the tenant had the right to terminate its lease had access been blocked and this option was never exercised. Accordingly, the Court finds that claimant is not entitled to the claimed annual rental of $1,922 per month for the entire property. Rather, the Court finds that the valuation as set forth by defendant was not unreasonable and is hereby adopted by the Court. The parties stipulated that the temporary easement ran from May 25, 1999 until February 28, 2002. Thus, the sum of $408.00 per month from May 25, 1999 through February 28, 2002, multiplied by 33 months, equals $13,464.00, to which claimant is entitled for the temporary easement. Accordingly, claimant is awarded this amount with statutory interest thereon from the vesting date of May 25, 1999 to January 1, 2000 and then from May 22, 2001 to the date of entry of this Decision and thereafter to the date of entry of judgment.
The award to
claimant herein is exclusive of the claim, if any, of persons other than the owners of the appropriated property, their tenants, mortgagees 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 is exclusive also of claims, if any, for the value of or damage to easements and appurtenant facilities 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.
It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
All motions not previously ruled upon are now DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.


February 17, 2004
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims





[1] Defendant objected to Schneider's reliance upon a 1967 survey (Ex. 23) because it was not referenced in his report. Court of Claims Rule § 206.21(h) limits expert testimony to matters set forth in appraisals or other reports. Accordingly, this exhibit was not received into evidence.
[2] Schneider prepared his report on the basis of three rather than four tanks. At trial, he adjusted his figures upward to account for this error. Thus, there is an apparent discrepancy between Sterling and Schneider's figures for the cost of the tanks.
[3] The parties stipulated that the contract was for vacant land only (Fax Dated December 22, 2003).