This timely served and filed Claim is for damages resulting from the temporary
and permanent appropriation of Claimant's land by the State of New York
(hereinafter "State") for purposes connected with the highway system of the
State pursuant to Section 30 of the Highway Law and the Eminent Domain Procedure
Law (hereinafter "EDPL"). The Claim was filed on May 25, 2000. The premises,
consisting of an 81.5 acre parcel of property bisected by New York State Route
17 (hereinafter "Route 17") into two parcels, one located on the north side of
Route 17, the other located on the south side, were appropriated in proceedings
entitled "Elmira-Lowman S.H. No. 5207", Map No. 107, Parcel No. 134; Map No.
108, Parcel No. 135; Map No. 106, Parcel No. 133; Map No. 113, Parcel No. 140;
and Map No. 124, Parcel No. 151. The parties stipulated that the date of taking
was August 12, 1999, and the Court finds that the Claimant, Coldiron Fuel, was
the fee owner on the date of vesting and the State has complied with all
necessary procedures under the EDPL with regard to service. The Court has made
the required viewing of the subject properties.
Claimant is and was the owner of the property by reason of a Deed dated July 7,
1980 from Lewis C. Meyers, Jr., Grantor to Coldiron Fuel Center, Ltd., Grantee,
recorded in the Chemung County Clerk's Office on July 10, 1980 in Liber 675 at
page 353. The subject property is identified by SBL No. 121.00-1-6 on
assessment maps of the Town of Ashland, comprising of an area of approximately
81.5 acres. The site consists of an elongated irregular shaped parcel that is
severed by Route 17. That portion of the subject property fronting along the
south side of Route 17 contains an estimated 18 acres. The topography is level
to rolling, sloping moderately from the south side of Route 17. The property
extends southerly to the Chemung River. This portion of the property is
bisected by an abandoned railroad right-of-way. Prior to trial the parties
agreed that the value to this 18-acre portion of the Claimant's property located
on the south side of Route 17 should and would be valued at $14,000.00.
Consequently, the Court finds this value to be appropriate and the remainder of
this Decision will address only that portion of the property located on the
north side of Route 17.
The north side parcel contains approximately 678 feet fronting along the north
side of Route 17 and is intersected at the southeast corner by Oneida Road,
which is also known as Old Route 17. This portion of the property is also
generally level in topography and at grade with Route 17 to a point that is 200
to 300 feet in depth from the north side of Route 17. A survey map describing
the appropriated parcel located on the north side of Route 17 was stipulated
into evidence by the parties (Claimant Ex. 8) and said map and the description
set forth therein are adopted by the Court and incorporated herein by
The only portion of Claimant's property that appears developable north of Route
17 is that portion of the property located between the north boundary of Route
17 and the south boundary of property now or formally owned by David Edwards and
contains approximately 3.0 acres. The topography of the developed portion of
Claimant's property is level and is more or less at grade with Route 17.
The property has been improved by a restaurant and fuel center. Site
improvements consist of a large paved parking area containing an estimated
75,000 square feet. There are two single wall underground storage tanks
containing 10,100 gallons each, one 8,000 gallon fiberglass tank and three
double walled tanks each containing 6,000 gallons. In addition, there is a
12,500 gallon above ground tank for storing diesel fuel. Prior to
appropriation, the property was accessed from the southeast corner at the
intersection with Oneida Road or Old Route 17 and along Route 17. In addition,
the site was accessed at the southwest corner with a curb cut on Route 17. The
site was serviced publically and had utilities available, including electric,
telephone, gas, and water. No public sewers were available and sewage disposal
was handled with an on site system.
Building improvements consisted of a single story framed building with a gross
area of 3,994 square feet containing a restaurant and truck stop. This building
was divided into two separate units. The west side of the structure contained
the restaurant with a seating capacity of 84 persons and a gross area of 2,428
square feet over a partial basement. The front entry vestibule of the
restaurant measured 4 feet by 7 feet with a side entry vestibule (west side)
measuring 5.5 feet by 7 feet. A hallway connected the restaurant to the
adjacent truck stop facility on the east side of the building. The restaurant
had a large dining area with a linoleum floor covering, a drop ceiling
consisting of 2 foot by 4 foot panels and suspended fluorescent lighting
fixtures. The walls were covered with wood paneling. In the basement area a
gas fired boiler and hot water heater were present. The northerly section of
the dining area was also covered with a tile floor with an "L" shaped counter
adjacent to the kitchen. The kitchen also was tile covered with a floor drain
and a rear door leading to an 8 foot by 8 foot walk-in cooler. Restrooms
serviced the facility, covered in ceramic tiles, with vanities and single sink
The east end of the building was used in conjunction with gasoline sales and as
a truck stop and convenience store. This area contained a gross area of 1,566
square feet. The front entry led to a small retail area also covered in ceramic
flooring, with drop ceiling, fluorescent flush lights and wood paneling. The
east wing of the building measuring 8 feet by 20 feet was the sales area for the
gasoline and diesel fuel portion of the business. This section had vinyl
flooring, a drop ceiling with flush lights, wood paneling, and a Formica counter
that extended along three walls. The center section of this building also
served as a retail area and there was a door along the east wall leading to the
parking area. The rear section of the building contained a small office area
and also had an exterior wall. This rear section of the building also had
access to a shower room with a concrete floor, drop ceiling, two shower stalls,
urinal, and water closet.
The building exterior consisted of vertical wood siding with a flat built-up
roof, with a mansard facade along the front, east and west sides. Additional
improvements consisted of a 24 foot by 24 foot canopy supported by a single
vertical column over the front pump island containing three gasoline pumps.
Along the west side was a 24 foot by 48 foot canopy supported by two vertical
columns over the pumps for diesel fuel. There were three pumps under this
All buildings, improvements, and structures located on the subject parcel have
been either razed or removed.
The subject property is zoned business to a depth of 500 feet from the north
side of Route 17. The remaining land located on the north of the business zone
is zoned residential/agricultural which permits agricultural uses and
residential development. However, any remaining portions of Claimant's parcel
on the north side of Route 17 currently has no access to any road or highway
which permits business or commercial traffic. The taking, including the
improved gas station, pumps, buildings, and all the pertinent structures, etc.,
is more accurately described in Claimant's Exhibit 8 which shows the total
taking of property improved and used for commercial and business purposes to be
a total of approximately 1.1 acres.
In discussing the highest and best use of the property, each of the appraisers
states that the highest and best use of the property before the appropriation
was for commercial use as a gasoline station/convenience store operation. Both
also agree that the highest and best use of the remaining property after the
taking is for vacant rural agricultural land that either is landlocked or has no
hope for future commercial or industrial development due to the lack of any type
of commercial traffic access to the property as it now exists.
The primary question for the Court to determine is what effect the taking had
on the remainder. There are a number of differences between the parties which
constitute the difference in values between the appraisers' reports. However,
the primary difference between the reports pertains to the amount of severance
damages attributed to the remainder.
At trial, Claimant called two appraisers to testify. One of the Claimant's
appraisers was John S. Miller, of Central New York Appraisal Group, who prepared
an appraisal report relative to the above-referenced parcels. The Court heard
testimony from Mr. Miller and accepted his appraisal report as Exhibit 11. Mr.
Miller prepared an analysis using the income capitalization approach based upon
the number of gallons sold at various convenience store locations throughout the
Upstate New York Region. Claimant contends that the income capitalization
approach which in part calculates gallons of gasoline sold at a subject property
in order to arrive at an appropriate value, is an important and accepted method
of valuing these types of service stations/convenience stores. The Court is
inclined to agree, however, with the Assistant Attorney General that while other
states may generally accept gallonage as a method of valuation, New York courts
have shied away from the use of gallonage as the sole basis for determining
valuation in appropriation proceedings. (
Kozecke v State of New York,
34 AD2d 599; Matter of County of Nassau
(Old Country Road
), 57 Misc 2d 488). As the Third Department noted in
, "[t]here can be no doubt that to some extent the number of
gallons sold is dependent upon the management of the premises...and is beyond
the control of the fee owner." (Kozecke
, 34 AD2d at 599). Moreover, as
a general rule, the amount of profit earned from a business conducted on
condemned property is not ordinarily admissible in evidence. (Nichols on
Eminent Domain, Revised 3rd Ed., Vol. 5, Section 19.06 ). Rather, profits
depend on the economy, the amount of capital invested, and the skill and
dedication of the entrepreneur along with many other variables. "What one man
might do at a profit, another might only do at a loss." (Sauer v City of New
, 44 AD 305, 308). Consequently, the Court has not considered the
testimony or appraisal report of Mr. Miller to the extent the same utilized the
income capitalization approach, based on calculating the gallons of gasoline
sold at the subject site, to arrive at a market value for Claimant's business.
The Court's sole use of Mr. Miller's appraisal is that portion of his report
which evaluates the land as vacant in both the before vesting and after vesting
At trial, Claimant also called his other appraiser, Robert G. Pogel, of Pogel,
Schubmehl, Rogachefsky & Ferrara, LLC. Mr. Pogel's appraiser report was
received into evidence by the Court as Claimant's Exhibit 9, and he testified in
relation thereto. To counter Mr. Pogel's testimony, the State called John J.
Dessena, a certified general real estate appraiser for the State Department of
All the appraisers made a determination of the land value by using the
comparable sales of vacant land method. Claimant's appraiser, Miller, examined
five sales (sales 1 - 5) and the Defendant's appraiser examined three sales
(sales 1 - 3). Mr. Miller, after making adjustments to his comparable sales,
arrives at a range of values from $137,631.00 to $157,823.00 per acre. He
arrives at a value of $151,724.00 per acre for the subject property.
Defendant's appraiser, after making adjustments, arrives at a range of values of
$24,500.00 to $36,303.03 per acre. Defendant's appraiser finds the per acre
value of the subject property prior to the vesting date to be $36,000.00.
Based upon the foregoing, the Court determines that the value of Claimant's
property immediately before the taking was $90,000.00 per acre. The total value
of the property before the taking was $270,000.00 (3 acres times $90,000.00).
Therefore, the Court finds Claimant's direct damages for land taken to be
$99,000.00 (R) (1.1 acres x $90,000.00).
The Court must next determine if there was any severance damage to the
remainder as a result of the taking. It is well-settled where the State takes a
portion of property, the claimant is entitled not only to direct damages for the
taking but also consequential or indirect damages for the diminution in the
value of the remaining property as a result of the taking. (
Fason Properties Inc. v State of New York
, Ct Cl, August 29, 1994,
Blinder, J., Claim No. 81102). As a general rule, the measure of damages in a
partial taking case is the difference between the fair market value of the whole
property before the taking and the fair market value of the remainder after the
taking. (Acme Theatres, Inc. v State of New York
, 26 NY2d 385, 388).
Both appraisers agree that the taking of the land and the improvements resulted
in some amount of severance damage.
In determining the before value of the subject property, inclusive of
improvements, the appraisers used the sales comparison of improved properties.
Claimant's appraiser, Mr. Pogel also used the cost approach and the income
capitalization approach. Defendant's appraiser used only the sales comparison
of improved properties. The property and its use can not be considered a
specialty and therefore the Court will disregard the use of the cost approach.
Matter of Saratoga Harness Racing v Williams
, 91 NY2d 639, 645-646). An
examination of the appraisers' reports shows that the Defendant's appraiser
relied on the sales comparison of improved properties method for valuing the
subject property. Claimant's appraiser relied a little heavier on the
comparable sales method of improved properties in the before situation. The
Court, while not disregarding the other methods, will limit its discussion to
the comparable sales method of improved properties.
Mr. Pogel testified that it was necessary to view sales of similar uses around
the State which were similarly situated to the Claimant's service gasoline
convenience store since there were not a lot of comparable properties similarly
situated in the Chemung County area. Consequently, he searched around the State
for similar uses with close proximity, easy on and off access, to State
interstates with similar traffic volumes of approximately 18,000 vehicles per
day. Once these comparable sales had been found at various locations, the
witness adjusted the same for utilities, location, quality of construction and
age. After examining each of five similarly situated parcels and applying the
above-referenced adjustments, Claimant's appraiser testified to an adjusted
value of the improved property at the time of taking of $960,000.00.
Mr. Dessena, relying most heavily on the comparable sales approach, in viewing
their various comparable sales concluded an adjusted value of approximately
$645,500.00. However, as noted during cross-examination, and as the Court so
finds, the State's reliance on the comparable sales used in their report failed
to consider a number of factors which were applicable to the subject property
and which were properly considered by the Claimant's appraiser. More
specifically, with regard to the comparables contained in the State's appraisal,
no traffic counts were performed, there were no general limiting conditions, no
diesel fuel sales occurred at any of these comparables and none of the
comparables used by the State could accommodate eighteen wheeler tractor trailer
After considering the testimony and proof presented at trial, and that of the
Claimant's appraiser which the Court found more credible, the Court finds that
the fair and reasonable market value of the subject property before the taking
was $840,000.00. The Court attributes a value of $270,000.00 to the land and a
value of $570,000.00 to the building and improvements.
In analyzing the after value of the subject property, the Court notes that the
parties' appraisers opine that the highest and best use for the subject property
has changed. All of the improvements, including the buildings, were taken by
the appropriation. Therefore, the total value of the buildings and the
improvements must be awarded to the
After the appropriation, the remaining portion of the parcel on the north side
of Route 17 consisted of approximately 63.5 acres. Of that total acreage, 61.5
acres is zoned residential/agricultural and approximately 2 acres is zoned
commercial. The commercial portion of the acreage north of Route 17 has lost
access to Route 17. This commercial acreage has no other commercial access
available by local or county roads. The Court finds these acres are unable to
be developed regardless of commercial access. The opinion of the appraisers is,
and the Court finds, that the highest and best use of this property is for
limited recreational use.
In valuing the land after the vesting date, Defendant's appraiser examined the
same sales as in the before situation, and Claimant's appraiser, Mr. Pogel
analyzed three sales. Despite the lack of any commercial access and the limited
use of the commercial property, Defendant's appraiser still finds a value of
$3,000.00 per acre of the commercial property. After the vesting date, the
Claimant's appraiser finds no difference between the commercial property and
the remaining 61.5 acres north of Route 17 and values the entire parcel as one
unit. The Court agrees with the Claimant's approach to value in the after
situation. While the property may be zoned commercial, there is no commercial
use of the property. At this point, this portion of land is indistinguishable
from the remaining acreage north of Route 17. Thus, the Court adopts the value
of $300.00 per acre after the appropriation or $19,000.00(R) (63.5 acres x
$300.00 per acre). However, this finding overvalues this portion of land in
trying to determine damages. The Court must value the 1.9 acre remainder in
order to arrive at the appropriate damage figure. Using the per acre price of
$300.00, the Court finds the after value of the 1.9 acre remainder to be
$570.00. The Court finds a total damage to the land of $269,450.00(R). This
figure is comprised of direct damages of $99,000.00 and severance damage in the
sum of $170,450.00 ($269,450.00 - $99,000.00).
As previously stated, the improvements and the buildings were taken by the
Defendant. The Court awards the Claimant damages in the sum of $570,000.00.
This figure represents the value of the buildings and the improvements as found
by the Court. Consequently, the Court finds that the amount by which Claimant
has been damaged by this appropriation relative to the parcel located on the
north side of Route 17 is $839,450.00 ($570,000.00 + $269,450.00).
As for the parcel located on the south side of Route 17, it was mentioned
earlier that the parties stipulated that the 18 acres of land located on the
south side had basically been reduced to scrub land, totally lacked access to
any type of roadway or thoroughfare, and agreed that $14,000.00 was a fair and
accurate amount by which Claimant had been damaged for that portion of the
appropriation. As such, the total amount by which the Claimant has been damaged
by takings of parcels located on both the north and south sides of Route 17
totals $853,450.00 ($839,450.00 + $14,000.00).
In addition to the fee acquisition, the State also acquired a temporary easement
for 2.185 acres of the subject property. Claimant is entitled to the fair
rental value for the area of the temporary easement. The Court concludes that
the value of the temporary easement is $65.55 per annum or $5.50(R) per month.
The value of the 2.185 acres at $300.00 per acre is $655.50. The Court accepts
the appraiser's rate of return of 10% and finds the annual rental to be $65.55.
Dividing this amount by twelve months, the Court finds a monthly rent of
Accordingly, it is the finding of the Court that Claimant is entitled to an
$853,450.00 with statutory interest thereon from the vesting date of August 12,
1999 to February 12, 2000 and then again from May 25, 2000, to the date of
decision herein and thereafter to the date of entry of judgment for the
permanent appropriation; and $5.50 per month for the temporary easement from the
vesting date of August 12, 1999, until the easement was/is extinguished, with
Any motions on which the Court previously reserved or which have not heretofore
been decided are hereby denied.
The award to the Claimant herein is exclusive of the claims, if any, of any
persons other than owners of the appropriated properties, their tenants,
mortgagees or lienors having any right or interest in any stream, lake,
drainage, irrigation ditch or channel, street, road, highway or public or
private right of way or the bed thereof within the limits of the appropriated
properties or contiguous thereto; and is exclusive also of claims, if any, for
the value of or damage to easements or appurtenant facilities for the
construction, operation or maintenance of publicly owned or public service
electric, telephone, telegraph, pipe, water, sewer or railroad lines.
The Chief Clerk is directed to enter judgment in favor of Claimant as set forth
above and to the extent that Claimant paid a filing fee, it may be recovered
pursuant to Court of Claims Act § 11-a (2).
ENTER JUDGMENT ACCORDINGLY.