This is a timely filed claim for the entire taking of real property with no
remainder by the State of New York (State) for highway purposes pursuant to
section 30 of the Highway Law and the Eminent Domain Procedure Law in relation
to parking facilities at the Amtrak Station in the City and County of
Rensselaer. The claim was filed on December 7, 2000.
The premises, consisting of a 1.739 acre parcel of unimproved property, is
bounded on the north by Partition Street, on the east by East Street, on the
west by lands owned by the State and on the south by lands owned by the State
(formerly Golub). The property was appropriated in a proceeding entitled
"Rensselaer Amtrak Railroad Station Parking Lot Improvements, Map No. 4R-1,
Parcel 4, Rensselaer County."
The parties mutually indicate August 27, 1999 as the date of the taking and the
Court finds that claimants were the fee owners on the date of vesting and the
State complied with all necessary procedures under the relevant statutes with
regard to service. The Court has made the required viewing of the subject
property. The aforesaid map and description were filed in the Office of the
County Clerk of Rensselaer County on August 27, 1999. The claim was filed with
the Clerk of the Court of Claims and the Attorney General December 7, 2000. The
Court adopts the description of the appropriated property as shown on the map
and description filed in the Rensselaer County Clerk's Office, a copy of which
is attached to the claim and same is incorporated herein by reference.
Claimants are and were the owners of the property by reason of a deed dated
December 31, 1967 recorded in the Rensselaer County Clerk's Office on January
31, 1968 in Liber 1193 at page 272. The subject property is identified by tax
map number 143.52-4-1.1
on the assessment map
of the City of Rensselaer comprised of an area of approximately 1.739 acres.
The site consists of a slightly irregular L shaped parcel. The claim has not
been assigned or submitted to any other tribunal for audit or
A trial of the matter was held in Albany on March 13 and March 14, 2003.
Charles Geragosian was the first witness called by the claimants. Mr.
Geragosian confirmed Exhibit 2 is the deed by which he and the co-claimant, his
brother Michael J. Geragosian, received title to the subject property. Exhibit
2 was received in evidence without objection. The witness testified that the
property was excavated subsequent to the date of taking in a manner which
reduced the percentage of the property which was level to East Street from a
pre-taking amount of approximately 50% of the total area occupied by the
premises. As a result the property is not currently in the same condition as it
was on August 27, 1999. The witness also confirmed that the claim had not been
assigned or submitted to any other tribunal for audit or determination.
On cross-examination the witness described the topography of the site in
August, 1999 as being generally even with the grade of East Street and then
sloping to the west to a second level bounded on the west by railroad tracks.
The witness estimated the difference in elevation between the level area
adjacent to East Street and the western boundary of the property as "at least
ten feet". He related that excavation conducted subsequent to the date of
taking did not affect that portion of the property which connects to Partition
On redirect examination the claimant confirmed that the area of the property
fronting on East Street was generally level with the grade of the street with
certain portions thereof slightly below grade.
The claimants next called their appraiser Leonard Berdan. Mr. Berdan was
retained to appraise the property some time in the Fall of 2001. He related
that prior to preparing the appraisal report received as Exhibit 4 he performed
research regarding the property and surrounding neighborhood, applicable zoning
requirements and comparable sales. Mr. Berdan related his opinion reflected on
page five of the appraisal that the highest and best use of the subject
property is for commercial development consistent with zoning. He related that
the subject property was in August, 1999 located in a "LB" or local business
zone which he described as favorable with generally liberal set back and other
requirements. The property is also located several hundred yards north of the
Rensselaer Amtrak station which the witness testified is the tenth busiest
Amtrak station by passenger volume in the United States.
In conducting his appraisal the witness utilized the sales comparison approach
to valuation and applied various adjustments to each individual comparable
property. Mr. Berdan related that in conducting his analysis he compared the
subject property to comparable sales on a dollar per acre basis which he
considered most appropriate under the circumstances including the fact that the
subject parcel was vacant land. Page 7 of Exhibit 4, claimants' appraisal
report, contains a sales comparison grid providing relevant data and adjustments
relative to the subject property and four comparable properties. The
adjustments are explained on the following page of the report. Data concerning
a fifth sale was provided on page 13 of the report but the property, vacant land
located in a LB zone in the City of Rensselaer, seven to eight blocks from the
subject parcel, was sold subsequent to the date of taking and was therefore not
adjusted relative to the subject property.
The witness discussed various adjustments made to the four comparable sale
properties and stated his opinion that as of August 27, 1999 the fair market
value of the subject property was $160,000.00 per acre for a total value for the
subject parcel of $280,000.00. He noted that the location of the property
within a LB zone was in his opinion an asset and that only two such zones exist
within the City of Rensselaer. The witness testified that he verified data
concerning all comparable sales.
On cross-examination the witness agreed that as indicated on page three of the
report the City of Rensselaer lost population during the last ten years from a
total of 8,255 in 1990 to 7,761 in 2000. He described the property's location
as "a valuable business location" given its proximity to the Amtrak station and
the density of the residential neighborhood surrounding it. Berdan explained
his comment on page three of the report that the neighborhood was experiencing
increasing traffic by stating that his conclusion was based upon his own
personal observations and newspaper accounts but that he did not take an
independent traffic count. He was unable to relate the extent to which
individuals utilizing the Amtrak train station patronized neighborhood
businesses except upon his own experience in stopping at the Stewart's store
located on the corner of Partition and East streets on his way to the station.
The report also states on page three that there have been efforts to locate a
drugstore and hotel in the immediate neighborhood and cites speculation
concerning river front development. The witness explained the statements
concerning siting of a drugstore or hotel as based upon local press reports and
rumors or speculation within the real estate community. He noted that although
there have been several proposals for development of river front property in the
City of Rensselaer none of those proposals have as yet been developed. When
asked whether he was aware of any new development in the City of Rensselaer the
witness stated that development had occurred primarily along Routes 9 and 20
which he described as a four lane highway connecting the City to a suburban
location with traffic volume "quite a bit higher than East Street". He was not
aware of any development which had occurred on East Street where the subject
property is located other than the re-tenanting of a closed drug store by a
Family Dollar store. Notwithstanding this actual lack of development within the
subject neighborhood, the witness stated that there is little vacant land
available within the City of Rensselaer and that a demand for commercial
development land exists as evidenced by the acquisition and construction of
commercial properties on Routes 9 and 20.
With regard to the issue of comparable sales, the witness testified that sale #
1 is located in a commercial area on Red Mill Road near its intersection with
Route 4. He stated his opinion that the locations of sale # 1 and the subject
property are comparable. Although he acknowledged that Route 4 is more heavily
traveled than East Street he testified that Red Mill Road is less
Sale # 3 is located near the intersection of I-90 and Route 4 in the Town of
East Greenbush. The witness testified that there is a hotel, a bank and
restaurants near the property and that similar businesses are not present in the
neighborhood surrounding the subject parcel. The sales comparison grid on page
7 of the appraisal report describes the topography of sale # 3 as
"rolling/inclined". Berdan explained that a portion of sale # 3 was above grade
and that the property required substantial excavation to accommodate the
building ultimately placed on the site.
Sale # 4 is a property located in Troy, New York, approximately seven miles
north of the subject property. The property was improved with three or four
small retail stores and located in a mixed used area similar to the subject
With regard to sale # 5, the witness stated that the property was included in
his appraisal as a matter of general consideration and that he did not make
adjustments to the property vis-a-vis the subject parcel and did not consider
sale # 5 in the sales comparison grid because the sale occurred subsequent to
the date of taking of the subject parcel. He stated although he did not
utilize sale # 5 as a true comparable sale he felt it necessary to address the
property in his report because of its proximity to the subject parcel and its
location within the City of Rensselaer.
On redirect examination the witness stated that the only way to enter or to
exit the Amtrak station in August of 1999 was via East Street and that from his
observations the Amtrak parking lot was generally full. The witness testified
that he was familiar with the Capital View Project in the City of Rensselaer
which he described as an ongoing redevelopment of an old mill into
commercial/office space located near the subject property. He further stated
that sale # 5 involved the sale of vacant land at a price of $277,000.00 per
acre which the witness stated indicates a demand for commercial property in an
inner-city location such as the subject East Street parcel. He noted that the
sale price per acre was higher than similar commercial sales in suburban
On recross examination the witness stated that most passengers came to the
Rensselaer train station via East Street. He described the Capital View Project
as a mixture of new buildings and refurbished mill buildings containing offices
occupied by New York State agencies and departments. The witness was not aware
of any private tenants at Capital View. Claimants rested at the conclusion of
Mr. Berdan's testimony.
The defendant called its real estate appraiser W. Douglas Alvey. Mr. Alvey
testified that he is familiar with property values in Rensselaer County,
including the value of vacant land, and that prior to preparing his report he
inspected the property and the neighborhood surrounding it. Although he
utilized the comparable sales method of valuation he related that the valuation
process was affected by the limited number of sales which occurred in the City
of Rensselaer. The witness inspected the property several times and described
the area surrounding Partition and East streets as containing primarily older
single and multiple family residential properties ranging in value from
$25,000.00 to $60,000.00 and various commercial enterprises such as a Stewart's
Shop, taverns, a flower shop and a drug store which was closed at the time of
Mr. Alvey testified that he first inspected the property in February, 1999. He
described the parcel at that time as being irregular in shape and heavily treed.
That portion of the property which fronted on East Street was generally on grade
and sloped downward as it proceeded west while the Partition Street frontage
declined at a somewhat more severe rate from street level. He stated his
opinion that the topography of the site made development problematic and that in
his opinion the fair market value of the property on August 27, 1999 was
The witness testified that after considering the comparable sales data
collected, the physical characteristics of the site, zoning and other factors he
concluded that the highest and best use of the parcel was as a secondary
commercial property serving primarily the local residents and persons utilizing
the Amtrak train station. He stated his opinion that the area of East Street
and Partition Street in the City of Rensselaer was a secondary commercial
location as opposed to a primary location such as Routes 9 and 20.
The comparable sales used by the witness in reaching his conclusion as to the
fair market value of the subject parcel are set forth on pages 25 through 28 of
the appraisal report and the adjustments required are contained in a grid matrix
set forth on page 29.
Sale # 1 is a slightly irregular parcel of 1.25 acres located on the north side
of Routes 9 and 20 in the Town of East Greenbush. The witness described the
adjustments made in the report and stated his opinion that sale # 1 was
superior to the subject parcel in location, shape and topography. Sale # 1 was
inferior in size relative to the subject.
Sale # 2 is a 1.73 acre parcel located on Routes 9 and 20 one quarter mile west
of its intersection with Routes 4 and 20 in what the witness described as a
densely developed commercial area containing numerous shopping centers, fast
food restaurants and other commercial enterprises. In his opinion sale # 2 is
superior to the subject parcel in shape, topography and location.
Sale # 3 is located on Routes 9 and 20 approximately 1 ½ miles east of its
intersection with I-90 in the Town of Schodack. According to the witness this
parcel was inferior to the subject parcel in size and location and superior in
shape and topography.
Sale # 4 is located in a planned development district on Valley View Boulevard
near Route 4 in the Town of North Greenbush. According to the witness the
subject parcel was inferior to sale # 4 in location and inferior in shape and
topography. All adjustments made to the individual comparable sales are set
forth on page 29 of the appraisal report.
Finally, the witness testified that he reviewed an engineering report prepared
by William Bamford and that he used the report only as a guide in preparing
his appraisal. Mr. Bamford's report indicates that substantial amounts of fill
would be required to create a building lot level with East Street and estimates
costs attendant to the work.
Mr. Alvey related on cross-examination that he was retained by the defendant in
May, 2001 for purposes of preparing the appraisal report. He stated that he had
originally inspected the property in February of 1999 at the request of the
Capital District Transportation Authority but did not prepare a subsequent
appraisal report. He agreed that the subject parcel was one of only a few
available vacant commercial parcels within the area surrounding the subject
property. The witness was aware that in 1999 the Rensselaer Amtrak station was
the tenth busiest railway station in the United States but did not include that
information in his appraisal report. He also acknowledged that the report does
not contain any photographs of the subject parcel as it existed prior to its
acquisition by the State and, further, does not address the favorable zoning
provided in a LB zone. Although Mr. Alvey relates in his appraisal report that
East Street is a lightly traveled two way inner-city street he did not secure
any traffic count data for inclusion in the report. He stated that he requested
such data from the State regarding East Street but was informed that none was
available. He made no such request and secured no such data regarding Route 4
or Routes 9 and 20.
With regard to comparable sales, the witness stated that he did not positively
adjust the subject parcel to reflect its proximity to the Amtrak train station.
Nor did he note that sale # 1 was a sale to an abutting owner. The witness
agreed that the property denominated as sale # 4 is located in the Town of North
Greenbush approximately six or seven miles from the subject parcel. He stated
that although sale # 1 consisting of 1.25 acres is 30% smaller than the subject
parcel of 1.739 acres he had allotted only a 5% size adjustment vis-a-vis the
properties. Had a 30% size adjustment been made the overall net adjustment
would have been reduced and the indicated value to the subject parcel would have
increased to approximately $190,800.00.
Similarly, sale # 3 containing 1.13 acres was approximately 40% smaller than
the subject parcel. The witness adjusted sale # 3 + 10% relative to size and
agreed that had a 30% size adjustment been used the indicated value of the
property relative to the subject would be $172,480.00.
The defendant called William Bamford, a licensed professional engineer employed
by Smith & Mahoney. Mr. Bamford was retained by the defendant to analyze
the development potential of the property and in preparation stated that he
visited the site several times and reviewed the topographical plan for the site.
During his site visits the witness observed that although the frontage along
East Street was generally level it dropped sharply approximately 20 feet as it
proceeded to the rear or westerly boundary of the property. A similarly steep
drop-off existed on the Partition Street frontage of the property. According to
the witness the topographical survey related that the average elevation at
street level was approximately 46 feet above sea level while the elevation at
the lower level was approximately 26 feet.
The engineering report prepared by the witness was received as Exhibit B and
contained a two page letter and three attachments. Exhibit B reflects that Mr.
Bamford prepared two alternative conceptual grading plans for the site, both
of which would provide a relatively level building site. The first alternative
proposed a .52 acre buildable area providing a slight slope as the property
proceeded west from East Street. Alternative number one would require
approximately 7,900 cubic yards of fill at an estimated cost of between
$63,000.00 to $79,000.00 at a rate of $8.00 - $10.00 per cubic yard.
Alternative number two provided a buildable area of approximately .81 acres and
required approximately 17,400 cubic yards of fill material at a total cost of
approximately $139,000.00 to $174,000.00. The witness stated that the proposals
were designed to raise the property to a level even with East Street so that the
property could be developed utilizing available storm water and sanitary sewers.
The proposals were designed to provide a relatively level area even with East
Street which would permit use of the property as either a parking lot or a
building lot. He explained that the broken lines shown on the attachments to
Exhibit B reflect the physical contours of the property at the time the
topographical survey was taken and that the solid lines reflect the contours of
the property subsequent to the work proposed. The witness stated that the
proposals were not exclusive and that there were other feasible methods for
developing the site. The costs reflected in the report reflect the cost per
fill yard multiplied by the amount of fill required by the respective
proposals. The cost of fill utilized in preparing the estimates reflect the
cost as of the date of the report which is January 29, 2002.
On cross-examination the witness stated that he devoted approximately two days
or sixteen hours to his investigation and the preparation of the report
contained in Exhibit B. He stated that he did not prepare the "existing
condition" topographical map utilized in preparation of the alternative
proposals attached to Exhibit B, nor was he aware of the date when the
topographical map was prepared. He agreed that Exhibits 6 and 7 appear to be
the same maps provided by him to the defendant reflecting development option #1
and option #2. The witness acknowledged that neither map contains information
reflecting the date on which it was prepared.
Exhibit 6 is the same map included in the witness's engineering report as
option #1 requiring 7,900 cubic yards of fill to provide a buildable area of
.52 acres. The witness did not consider any particular building plans for the
site in preparing the report or the proposals contained in Exhibits 6 and 7 and
stated that the level area provided in the proposals could be utilized for
either a parking lot or a building. The witness stated that he was probably
aware of the parcel's zoning at the time of preparation of his report and that
it was not necessarily true that if a commercial building was placed on the site
the amount of fill required would be less than reflected in his proposals due to
the area occupied by the building's foundation. The witness stated that the
report he prepared was generic in nature and did not anticipate any particular
form of development.
Mr. Bamford reiterated his testimony on direct that he utilized the cost of
fill as of January, 2002 in preparation of the cost estimates contained in the
report. He stated that he has been involved as part of his work experience in
the preparation of site plans for bi-level buildings. He stated that bi-level
buildings are generally able to take advantage of topographical features
existing at a particular site. He was unable to state the date when the base
topographical map utilized in his report was prepared and did not know whether
that date was before or after August 27, 1999. He stated that he was aware that
the property had been graded subsequent to its taking by the State and related
that the contours of the property at the time of the witness's site visits
appeared generally consistent with the topography shown on the topographical
maps utilized in his reports. The witness reiterated that he did not prepare
the topographical map but rather used a topographical map available in his
office. On redirect examination the witness related that he has previous
experience in site plan developments and that not every building has a basement.
On recross examination the witness related that options # 1 and # 2 contained in
his report and reflected in Exhibits 6 and 7 depict the use of a minimum of
7,900 cubic feet of fill to prepare a generally level building area. He stated
that were the property developed through the use of a bi-level building or a
single level building with a basement the area devoted to the lower floors or
basement would reduce accordingly the amount of fill required. If that area
were occupied by building space less fill would be required.
The final witness at trial was Thomas C. Andress, a professional engineer
licensed in the State of New York who was offered by the claimants as a rebuttal
witness. Mr. Andress stated that his specialty is commercial development
including site design. He stated that he reviewed and utilized the
topographical information provided in the Bamford report in his study of the
site. The witness stated that in his opinion the grading plan proposed by Mr.
Bamford was not required in order to develop the parcel but rather simply
provided a proposal for bringing the parcel to a point where there existed a
buildable lot level with the elevation of East Street. Mr. Andress prepared a
rebuttal report (Exhibit 8) in which he proposed two alternative methods for
developing the site. The first such proposal was for the construction of a 163
space commercial parking lot which did not require the importation of fill. The
second proposed development was for a retail/office building complex consistent
with the property's LB zoning. The witness proposed in his plan the development
of two lots utilizing a common driveway easement and a two story design with
"grade access for the second floor in the front and for the lower first floor at
the rear". According to the proposal such a design would eliminate the need for
The witness stated that he was aware of applicable zoning as of August, 1999
and that he utilized the topographical maps provided to the defendant by Smith
and Mahoney because the site had been altered at the time of his inspection
during the fall of 2002. He stated his opinion that fill was not required in
order to develop the site consistent with zoning and its highest and best use
and that the two plans prepared by him and included in the rebuttal report
provided for commercial use of the property without the need for importation of
The witness stated on cross-examination that the parking lot plan included in
the rebuttal report required cutting and reallocation of soil but that he
performed the calculations necessary to confirm that adequate fill existed at
the site to support the plan. The witness inspected the property in the fall of
2002 but did not take soil samples to determine if the property was suitable for
use as a parking lot nor did he consider water runoff issues or utilities in
preparing what he described as a conceptual design. He agreed that certain
costs related to utilities and water runoff would be a factor in any site
development plan. The witness stated that although he did not perform soil
tests at the subject property it was his opinion based on his experience in the
same general geographic area that the soils at the site were adequate to support
construction of the parking lot. Although the sub-base material and thickness
of the asphalt may vary, the witness stated that a parking lot can be
constructed on most any soil type.
With regard to the retail/office plan, the witness agreed that there are
potential extra costs incurred in constructing a bi-level building into a slope
such as that which existed at the site. These costs include somewhat higher
design costs and additional costs incurred in construction of a foundation which
would also act as a retaining wall and therefore require thicker walls and
additional steel reinforcement.
On redirect examination the witness stated that he first visited the site
approximately one week prior to the date the opinion letter was prepared on
October 15, 2002. Based on the topographical map utilized by Mr. Bamford it was
the witness's opinion that there was no need to import fill in order to develop
the property in a commercially viable manner.
Finally, Mr. Andress stated on recross examination that the parking lot
proposed in his rebuttal report was proposed at a 4% cross-slope which he stated
was within the normal range for a parking lot.
At the conclusion of the proof the claimants moved to strike the engineering
report prepared by Mr. Bamford and received in evidence as Exhibit B based upon
the argument that the cost of fill related in the report reflected costs as of
January, 2002 and not costs in effect as of August 27, 1999. Claimant also
argued that there was no showing that the base topographical contours shown on
the map reflect conditions which existed as of the date of the taking.
The Court reserved on the motion which is now granted. Absent proof of the
cost of fill and other improvements to the subject in 1999 dollars the State's
engineering report lacks relevance and hence cannot serve as a basis for
lowering the subject's value. Similarly the State's topographical map must be
disregarded absent proof of its date of origin vis-a-vis the date of taking or
other proof demonstrating that the land contours contained therein are the same
or substantially similar to the contours on the taking date. Testimony
regarding improvements allegedly required to bring the subject to grade level
with East Street has also been disregarded.
Highest and Best Use
In his appraisal filed with the Court on January 30, 2002 claimants' appraiser
Leonard B. Berdan at page 5 opined that the highest and best use of the subject
before the taking was for "commercial development consistent with zoning."
Similarly, the State's appraiser in his report (Defendant's Exhibit C, at p. 23)
opined that the subject's "highest and best use would be a commercial use which
would combine compatibility with the train station as well as servicing the
needs of the local neighborhood residents." Secondarily, the State's appraiser
suggested that the subject could be "assembled with the two abutting properties,
but topographical considerations would impact its marketability, utility and
Applying the four well established criteria for highest and best use, i.e.,
legal permissibility, physical possibility, financial feasibility and maximum
profitability and cognizant of both the subject's location, physical
characteristics and generous LB (local business) zoning the Court concludes that
the highest and best use of the subject in the before situation was commercial
development in conformity with local zoning.
Valuation Before Taking
It is established that the standard for determining proper compensation in
condemnation cases is "market value at the time of appropriation, that is, the
price a willing buyer would have paid a willing seller for the property"
(Town of Islip, Matter of, [Mascioli], 49 NY2d 354, 360). "The valuation
is to be based upon the highest and best use of the property, regardless of
whether the condemnee is so using the property at the time (Matter of County
of Suffolk [Firester], 37 NY2d 649, 652)" (Breitenstein, Matter of v
State of New York, 245 AD2d 837, 839). The Appellate Division, Third
Department, further cautioned in Breitenstein, (supra, at