New York State Court of Claims

New York State Court of Claims

CAMPERLINO v. STATE OF NEW YORK, #2003-018-257, Claim No. 99592


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:
Defendant's attorney:
Attorney General of the State of New York
By: JOHN J. PICKETT, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 1, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks remuneration from the State for a partial appropriation of his property[1]
pursuant to Highway Law § 30 and the Eminent Domain and Procedure Law, as the result of the State Department of Transportation (DOT) Route 57/Route 31 Improvement Project; specifically the widening of Route 57 (also known as Oswego Road) in the Town of Clay, in Onondaga County.[2] This partial appropriation involves two separate adjoining lots, which together form roughly a large rectangle. The smaller lot is improved with a single story building leased for use as a convenience store and is known as map number 167, parcel number 229. This lot will be referred to herein as Economic Unit #1. The second lot is vacant and in the shape of an "L" and is known as map number 132, parcel number 189. This lot will be referred to herein as Economic Unit #2.
This claim, which addresses both parcels was timely filed on January 5, 1999, and served upon the attorney general on December 30, 1998. By agreement of the parties, the taking of each parcel was tried separately. This decision follows the sequence in which each taking was tried.

The maps and descriptions were filed in the Onondaga County Clerk's Office on November 26, 1997, which this Court finds to be the date of the taking for both parcels. The Court adopts the descriptions of the appropriated property as shown in those filed maps and descriptions which are attached to the claim and incorporated herein by reference. The Court has viewed the property.

Economic Unit #2:
This parcel is an L-shaped vacant lot which has road frontage on three sides; on Oswego Road also known as Route 57, and on the side streets of Canvasback Drive and Shoveler Lane. Claimant acquired the property from CFB Development Corp. by warranty deed recorded on May 18, 1983. The conveyance was made subject to a life estate given to Grace Rowley who died February 18, 1992.[3]
The property is a designated commercial area and part of a Planned Unit Development district (PUD) called Willowstream. Simply put, a PUD is a planned community in which there are residential properties, multi-family properties and community facilities. Contemplated and allowed by the zoning designation is property for commercial development to accommodate the needs of the residents. The residential area of the Willowstream PUD has been developed and has approximately 1,200 housing units with 4,500 residents.

The "L" shaped parcel[4]
was 6.282 acres before the appropriation. The land taken by the State was irregularly shaped; on the north end, the depth of the taking was just over 50 feet. That depth remained consistent for a distance and then tapered to a point. The State appropriated .315 acres from this parcel leaving 5.967 acres. The experts agreed and the Court so finds that the before and after highest and best use of the parcel is for commercial development. This is consistent with the zoning and its intended use in the PUD.
Because the parcel was vacant, the appropriate valuation method is the sales comparison approach, which both experts used.

The vacant property had restrictive covenants and easements to which it was subject. The easements were those for utilities which had virtually no negative effect on the value. The restrictive covenants were reflected in an agreement between claimant and the purchasers of the adjoining property (which is the subject of the second part of the same claim and will hereinafter be referred to as the Economic Unit #1, also referred to as the "Benefitted Property" in the parties' agreement) which is improved and is being used as a Wilson Farms convenience store. The agreement[5]
contained limitations on the commercial uses for which Economic Unit #2, the vacant parcel (therein referred to as "subject property"), could be developed, although the owner of the Economic Unit #1 could agree to waive the limitations. The pertinent paragraph of that document reads:
Without the prior written consent of the owner of the

Benefitted Property, which shall not be unreasonable [sic]

withheld or delayed, and for so long as a convenience

store is operated on the Benefitted Property, the owner

of the Subject Property shall not lease, use or permit

to be used any portion of the Subject Property for an

establishment whose principal business is (i) a food

or convenience market, a health or beauty aides

store (with or without a pharmacy) and/or a drugstore,

(ii) a beverage store primarily involved in the sale of non-

alcoholic and/or alcoholic beverages (except that a liquor store

is permitted on the Subject Property provided that such

liquor store shall not be permitted to sell beer or non-

alcoholic beverages) and (iii) a delicatessen or sandwich shop;

provided however, that the owner of the Subject Property

shall not be precluded from leasing, using or permitting to be

used any portion of the Subject Property for purposes of

operating a Burger King, McDonalds, Pizza Hut, Dominos

and/or Little Ceasars [sic] Restaurant, a full service restaurant

and without the prior written consent of the owner of the

Benefitted Property, which consent shall not be unreasonably

withhold [sic] or delayed, other fast food restaurants which

offer the incidental sale of sandwiches in their menu. In

addition, the owner of the Subject Property shall not lease,

use or permit to be used any portion of the Subject Property

for (y) a business whose primary use conflicts with the

principal use of the Benefitted Property, provided the use of

the Benefitted Property is a pre-existing use, or (z) an

obnoxious use such as a pool hall.

Claimant's expert, John R. Mako, was unaware of this agreement when his appraisal was completed but testified that it would not affect his valuation of the property.
The experts agreed that the neighborhood in which the subject property lies is relatively fast-growing area with a stable residential population; hence the need to widen Route 57, Oswego Road.
Claimant's expert used the sales comparison approach, the appropriate valuation technique for vacant land. He chose three properties also situated in the Town of Clay for his comparisons. The first consisted of a two-lot purchase. This sale required demolition of the existing improvements for the purchaser to build an Eckerd Drugs. The property is on the same road as the subject property but closer to the City of Syracuse. The second property used as a comparable was also a two-lot purchase for development of an Eckerd Drugs. A tenant buyout and demolition was required for the purchasers to obtain and use this property. The third comparable was a lot, also on Oswego Road that was subdivided from a larger parcel and was purchased for the construction of a bank branch. This property was also in, what claimant's expert termed, a higher traffic area.

The Court finds a number of problems with claimant's comparables. As became clear during the cross-examination of Mr. Mako, the restrictive covenants affecting this property would make it highly unlikely that Eckerd Drugs or another drugstore chain would be interested in the purchase of claimant's property. Claimant's expert failed to utilize numerous other sales of commercial property in the area which were put to uses, including office space, which would more accurately reflect the type of use permitted by the restrictive covenants and therefore, would more appropriately reflect the value of the subject property. The third problem with claimant's appraisal is the topography. Claimant considered the subject property to be level when, at the time of the taking, it was not.

In assessing the two comparables purchased for Eckerd Drugs, the Court agrees with the State that common sense dictates that Wilson Farms (Economic Unit #1) would not permit an Eckerd Drugs to be built on this lot. However, it does not preclude the use of the property for other "premium" commercial uses. Adjustments to claimant's comparables will be made to reflect these findings.

As to the topography issue, the claimant's expert viewed the property on October 20, 1998 and December 27, 2000. The photographs used in the appraisal were all from his second visit. Mr. Mako testified that at the time of the taking and based upon a 1987 flood plain map, he did not believe any of the subject property was in the 100-year flood plain, although some spots may be in the 500-year flood plain.

The State called Christopher Covert, a New York State DOT engineer who was in charge of the road-widening project. He identified documents[6]
that relate to the use of the subject property as a waste area depository for material disposal during the project. By agreement between claimant and the State's contractor, Santaro Industries, and with permission of the Department of the Army, claimant's property received approximately 14,000 cubic yards of construction debris in 1999. It was thereafter graded and seeded. This process elevated about three acres of the property approximately four feet, bringing it to the road surface. Mr. Mako acknowledged that the re-graded level of the property would supercede the map. Based on the foregoing, the following changes need to be made in claimant's adjustments. The size adjustments for claimant's three comparables are adequate. On claimant's L-1, a -10% was made to account for the difference in zoning. This should be increased to a -15% due to the restrictive covenants. No adjustment was made for topography which should be -15%. Based upon these modifications, the adjusted value of this parcel is $199,297 per acre, or $4.58 per square foot.
For L-2, the same changes should be made, giving this parcel an adjusted value of $124,932 per acre, or $2.87 per square foot.

For L-3, the topography adjustment of 15% made by Mr. Mako should be eliminated and the zoning adjustment should also be changed to a -15%. The Court agrees with the 20% adjustment, made for the improvement in market conditions since the sale date of this comparable, leaving an adjusted value of $184,615 per acre or, $4.24 per square foot.

The State's expert used six sales as comparables to the subject property which were ultimately put to a variety of commercial uses. Three of these and one of claimant's sales were appropriately adjusted because of a change in market conditions since the sale date. Regarding topography, the State's expert noted that the subject property, at the time of the taking, was below grade. Mr. Fisher described it as wet or flood prone. The Court finds that the property was wet but not to the extent of being flood prone. In any event, Mr. Fisher assigned a -10% to the comparables for the inferior topography on the subject property.

The State also made adjustments based on traffic flow. The argument was made that commercial property in an area with higher traffic flow is more valuable. Although in general this may be true, the type of use for which the property is purchased would determine whether or not traffic flow has an impact. As Mr. Fisher said in his appraisal, fast food, branch bank, and gasoline station/convenience stores command a higher unit price and rely heavily on traffic flow. He considered these "premium uses." Mr. Fisher opined that "in light of recent events and the character of this site, a more compatible use such as townhomes [sic], apartments or office use are viewed as more likely [than retail development] for this site."[7]

Claimant argues that Economic Unit #2 with its PUD zoning designation can be the site of premium uses. The State's appraiser compiled a Project Appraisal[8]
which included comparable sales (L-3, L-7 and L-9) with premium uses, however he did not include these sales in the appraisal he prepared for trial. Since these uses are allowed on the subject property, the State was wrong to eliminate them from the trial appraisal. In addition, claimant argues that the further "traffic flow" adjustments penalize the subject property a second time for not being a "premium" use parcel.[9] The Court agrees that neither the conditions of sale nor traffic flow adjustments were warranted. The other adjustments are acceptable.
After eliminating the above inappropriate adjustments, the State's comparable values (per square foot) are:
L-1 L-2 L-3 L-4 L-5 L-6
$1.35 $1.53 $1.95 $1.88 $1.39 $2.42

After consideration of the appraisals and as adjusted comparable sales, the Court finds the before value of Economic Unit #2 to be $2.50 per square foot or $108,900 per acre. The value of the parcel is $684,110 before the taking.
The parties agree and the Court so finds that highest and best use of Economic Unit #2 continues to be commercial development.

The claimant used the same sales as used in determining the "before" value of this parcel. Mr. Mako determined that the taking altered the shape of the parcel and reduced its area to be developed by 5%. As a result, the value given to the parcel after the taking was $210,000 per acre or $1,252,500.

The State's expert also relied upon the same "before" sales in valuing the post-appropriation parcel. However, Mr. Fisher felt the small change in size did not warrant any reduction in value, finding it to have remained at $1.50 per square foot or a total of $390,000.

The Court agrees with the State that the amount of land taken to widen the road did not appreciably change the value of the parcel. Therefore, the "after" value per acre or per square foot remains the same. The value of the remaining land in Economic Unit #2 is $649,806 (R). The direct damages to Economic Unit #2 are $34,304 (R). The Court finds there are no indirect damages to the vacant parcel.
The second part of the trial was held on May 7, 2002. The appraisals had been previously entered as evidence and the two experts, along with the claimant, were the only witnesses.

This parcel is a level, rectangular 1.27 acres situated on the corner of Oswego Road and Canvasback Drive in the Town of Clay, County of Onondaga which was subdivided from Economic Unit #2. Claimant obtained this parcel as part of a conveyance from CFB Development Corp., recorded on May 18, 1983. On January 2, 1997, prior to the date of taking, claimant conveyed this parcel to Pearce and Pearce Co., Inc., retaining, by agreement, the right to receive any award from the anticipated eminent domain action. The property was improved with a 2,835 square foot[10]
single story concrete block building which was and still is, leased to Tops, Inc., for a Wilson Farms convenience store.[11] Other improvements prior to the taking also included asphalt pavement for parking, curbing, landscaping, lighting, signage and utility connections. This property is also part of the PUD commercial area described for Economic Unit #2. Undisputedly, the improvements were made anticipating the eventual widening of Oswego Road. The setback and parking were planned with the knowledge that the taking would occur, therefore, the property setback, decreased by the taking, is not a zoning violation. To accommodate the road widening, more land was included in the sale of this parcel than would have been needed for the development without the road widening.
The claimant's expert, Mr. Mako used two of the same properties to value the subject land in the "before" situation as he used to value the vacant parcel (Economic Unit #2). Those were the Eckerd Drugs properties (L-1 and L-2). Mr. Mako acknowledged that both of these sales consisted of two parcels each. He also agreed that smaller parcels usually sell for a higher unit value than larger ones but he valued the two sales as if they were each one larger lot. The Court agrees with the State that these sales should be adjusted to reflect the assemblage factor. Also, Mr. Mako mistakenly used a size of 1.3 acres for his fourth comparable sale when it was 1.8 acres. His per acre value should be adjusted to reflect that fact because the smaller lot would command a higher unit value.

The claimant's sales L-1 and L-2 should have a -20% adjustment for assemblage resulting in a per acre value of $298,945 and $187,398 respectively.

The L-4 parcel's adjusted per acre price should be $266,666 to reflect the 1.8 acres actually conveyed. An additional 10% adjustment should be made for the size differential as was added to L-1 and L-2. The resulting per acre value is $319,999 or $7.35 per square foot.

The State used five sales to determine the parcel's "before" value for land only. Adjustments were made for traffic flow for all five comparable sales. Although the traffic flow was greater near these comparable parcels, the Court finds the adjustment were too large and each should be reduced by half. The resulting per square foot values are:
L-2 L-3 L-4 L-5
$2.72 $2.49 $3.37 $3.24 $2.73

Considering all of the comparable sales used by both experts, as well as the testimony of each appraiser, the Court finds the value of the land only before the taking is $174,240 per acre or $4 per square foot. Therefore, the land value for economic unit #1 before the taking is $221,285.

For improved sales before the appropriation, the claimant's appraiser used three sales: P-1 was a diner/doughnut shop with an existing lease also located on Oswego Road; P-2 was a branch bank in a highly developed area but in a different town; and P-3 was the subject property. The expert adjusted P-3 by 20% under "Market Conditions" because the vendor (claimant) retained the right to receive any eminent domain proceeds. This was in error, as the parties knew at the time of sale how much land would be condemned and negotiated the purchase price with that knowledge. Only a 5% adjustment should be made. The enhanced pre-taking setback should be given a 5% adjustment and the site improvement should be a 5% adjustment also.

The Court finds that the 30% adjustment for location on sale P-2 is excessive. A 20% adjustment is sufficient. The adjustments for P-1 are appropriate.

The changes made by the Court result in sales prices of $202.80 per square foot for P-2; the value of P-1 remains $239.75 per square foot, and P-3 is $199.78 per square foot.

The State expert also used the subject property as a comparable (P-1) and the Court agrees with the respective 5% adjustment for set-back, and lot size and the 5% adjustment for the site improvements. There should also be a 5% adjustment for the right to receive eminent domain proceeds, resulting in a square foot value of $198.31. The other two sales used by the State are "adjusted" 180% (P-2) and 160% (P-3) respectively. These cannot be considered comparable and they are given no weight. Based upon the comparable sales, the Court finds the improved value of the subject parcel before the taking to be $201 per square foot of building size (2,835 square feet) or $569,835.

Although both appraisers also used the income capitalization approach to value this property; which is often the preferred method of valuing income producing property (
City of Buffalo v Joseph Davis, Inc., 32 AD2d 604, aff'd 26 NY2d 869; Kurnick v State of New York, 54 AD2d 1098; City of Niagara Falls v Zak, 40 AD2d 755); in this particular case, the evidence presented is insufficient for the Court to value the property using this approach. First, the claimant no longer owns or leases the property and, therefore, had little information for the experts to use. Secondly, the experts both indicated they estimated the expenses. Thirdly, no comparable business incomes and expenses were presented (see, CMRC LTD. v State of New York, Ct Cl, Mignano, J Sept. 30, 2002, #2002-029-218). The experts used this method as a means of confirming the values they arrived at by using the sales comparison approach. The only accurate information was the actual rent being paid. "While actual rent may be the best indicator of value, it is merely a factor to be considered in determining income value and another figure may be adopted if the actual rent is shown to be too high or too low (Motsiff v State of New York, 32 AD2d 729, affd 26 NY2d 692; Kommit v State of New York, 60 AD2d 945; Matter of City of New York [First Elephant Estates - LaHermosa Church] 17 AD2d 317; CMRC, LTD., v State of New York, Ct Cl, Mignano, J Sept. 30, 2002, #2002-029-218). Due to the paucity of evidence, the Court will not consider this method in determining the value of the subject property.
As claimant did not provide any itemization of the before value of the subject property's site improvements, the Court has credited the State's calculations of $61,000. The "before" land value as noted above is $221,285 and the value of the building is $287,550.
The appraisers agreed that the parcel's highest and best use after the taking continued to be commercial use. Both experts arrived at the same vacant land value in the "after" valuations as in the "before" valuations. The Court modifies their adjustments as it did previously thereby arriving at the same vacant land value per unit in the after situation as in the before, to wit: $174,240 per acre or $4 per square foot. The "after" value of the land totals $167,270 (R). The State took .31 acres or 13,504 square feet resulting in direct damages for the land taken to Economic Unit #1 of $54,014 (R).

To determine loss of value to the building and/or site improvements, the experts again valued the parcel after the taking using sales comparisons of the same improved properties. Again, the Court adjusted the property in the after situation as it did before, with the exception of the retention of the eminent domain proceeds adjustment, previously noted, which should be eliminated. Therefore, the claimant's adjusted values for P1 and P2 are $219.77 and $187.20 respectively. The resulting value of claimant's P-3 is $173.72. Greater weight is placed on this value as it reflects that of the subject property; however, the other comparable sales need to be considered.

The State's expert also used the same comparable sales as before and the Court finds the P-2 and P-3 adjustments of 140% and 130% respectively too substantial to consider those sales as comparable. For the subject property (P-1), the State's expert appropriately eliminated the 5% setback adjustment and the 5% site improvement adjustment and the Court also finds that its 5% adjustment for the retention of the eminent domain proceeds should be eliminated resulting in a square foot value of $173.72.[12]

Relying on the experts comparable sales, particularly the subject property, the Court finds the after value is $174 per square foot of building space or $493,290.

The total "before" value of $569,835 less the total "after" value of $493,290 equals $76,545, the total damages to claimant. From that figure, the value of the land taken ($54,014) is subtracted, leaving $22,531. The Court has adopted the State's calculation for the appropriation of certain site improvements, including asphalt, landscaping and a sign valued at $6,500. The indirect damages are $16,031.

Therefore, the Court awards claimant $76,545 for the loss to Economic Unit #1, and $34,304 (R) for Economic Unit #2, for a total award of $110,849 with appropriate interest from November 26, 1997, the date of taking until May 26, 1998, six months subsequent to the date of taking, and from January 5, 1999, the date of filing of the claim, to the date of decision and thereafter to the date of entry of judgment herein, pursuant to CPLR 5001 and CPLR 5002; and Court of Claims Act §19(1) subject to §19(4).
The awards to claimant herein are exclusive of claims, 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 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, pipe, water, sewer and railroad lines. All motions not heretofore ruled upon are denied. LET JUDGMENT BE ENTERED ACCORDINGLY.

December 1, 2003
Syracuse, New York

Judge of the Court of Claims



Direct Damages
.31 acres X $174,240 = $54,014
site improvements = 6,500

Consequential damages $16,031
Total Damages to Economic Unit #1 = $76,545


.315 ACRES x $108,900 = $34,304(R)
Total Damages to Economic Unit #2 = $34,304

The damages awarded to claimant are recapitulated as follows:
Economic Unit #1
$201 per square foot = $569,835

Before value (land and improvements)

[Land alone] 1.27 acres X $174,240 = $221,285
Site Improvements = $ 61,000
Building: $287,550

(2835 sq. ft. X $201 = $569,835
land alone - 221,285
site improvements - 61,000


After Value (Land and Improvements) $493,290

[Land alone] .96 acres X $174,240 $167,270
Site improvements 54,500
Building: 271,520

(2835 sq. ft. X $174)= $493,290
land alone - 167,270
site improvement 54,500


Damages: $ 76,545

Economic Unit #2

Before Value
6.282 acres X 108,900 $684,110

After Value
5.967 acres X $108,900 $649,806

Damages: $ 34,304

[1]The claim was filed seeking redress for the taking of a portion of two parcels. By agreement, each taking was tried to completion separately although some testimony and documentary evidence applies to both parcels. The decision is written in the order the trials were held.
[2]Project Identification No. 3035.19.222
[3]Claimant produced the death certificate and defendant stipulated to the date of death.
[4]The second parcel included in the claim was subdivided from this one and is bounded on two sides by this parcel and by Route 57 and Canvasback Drive on the other two sides.
[5]Exhibit K; recorded in the Onondaga County Clerk's Office on January 3, 1997, in Book 4131, pp. 285-293.
[6]Exhibits G, L, M and N.
[7]Exhibit A, p. 75.
[8]Exhibit 7 (this is the appraisal prepared prior to the taking which assists the State in estimating the cost of appropriation for the project).
[9]In his trial appraisal, Mr. Fisher notes that premium sites rely heavily on traffic flow (Exhibit A, p. 74).
[10]There was a minor discrepancy between the experts on the size of the building. There is no indication how defendant's expert arrived at his calculation. Claimant's appraiser noted that his square footage description was based upon his physical inspection of the building. As a result, the Court is adopting claimant's 2,835 square foot size.
[11]This lease is dated September 26, 1994, and runs for 15 years with six five-year renewal options. Periodic rent increases are included.
[12]The State used $172.44 as the sale price per square foot of the subject property when based upon the actual sales price of the subject property, the price per square foot is actually as calculated by claimant $173.72 per square foot.