New York State Court of Claims

New York State Court of Claims

Yorktown Building Corporation v. The State of New York, #2003-031-518, Claim No. 98857


In determining appropriation award to Claimant, legally permissible subdivision of vacant land is not necessarily controlling on issue of highest and best use.

Case Information

Yorktown Building Corporation, and Daniel G. Tronolone, individually, and as successor in interest to Yorktown Building Corporation
Claimant short name:
Yorktown Building Corporation
Footnote (claimant name) :

The State of New York
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Renée Forgensi Minarik
Claimant's attorney:
Michael G. Wolfgang, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Richard B. Friedfertig, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 20, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This timely served and filed claim is for damages resulting from the permanent appropriation by eminent domain of Claimant's[1] land by the State of New York for purposes connected with the State highway system, pursuant to Section 30 of the Highway Law. Claimant filed his claim on August 25, 1998. The appropriated property is reflected on Map No. 21, Parcel No. 21 in a proceeding entitled "Heim Road C.R. No. 173, Erie Co." The appropriation had an impact on a portion of sublot Nos. 2 and 3 of the Heim Road Acres Subdivision, map dated October 21, 1983, filed in the Erie County Clerk's Office by Krehbiel Associates on May 7, 1984 under Map Cover No. 2525, situate in Lot No. 62, Township No. 12, Range No. 7, Town of Amherst, County of Erie. The date of the taking is August 24, 1995. The State has complied with all necessary procedures under New York State Eminent Domain Procedure Law ("EDPL") with regard to service. I have made the required viewing of the premises.

The Heim Road Acres Subdivision map (Exhibit 1) depicts six separate building lots. Claimant testified that Yorktown originally purchased five of those lots. These are denoted as lots numbered 1, 2, 3, 4, and 6 on Exhibit 1. Claimant sought the assistance of the Town of Amherst building inspector and a surveyor to reconfigure lots 1 through 4 in order to convert them into five separate building lots. Exactly how this was done is unclear in the record. However, when I compare Exhibit 1, the original subdivision map, with Exhibit B, tax map 041.04, I find the reconfiguration affected lots 2 and 3 on Exhibit 1; that is, land was taken from the southern portion of each of those lots, making them smaller, creating a fifth lot north of lot 1 and south of lots 2 and 3.

The last original lot, lot 6 on Exhibit 1, was not altered. Claimant testified that Yorktown eventually constructed houses on lots 1, 6, and 4, respectively. I have no direct testimony regarding the fate of the fifth lot created by the reconfiguration. My site inspection revealed a vacant parcel of land sandwiched between two pre-existing houses at the bend in Heim Road. Claimant testified that lots 2 and 3 were his only remaining lots in the subdivision. The Sales History section of the State's appraisal (Exhibit A) states the appraiser reviewed a deed purporting to convey interest in what appears to be the reconfigured lot. These three factors support my finding that Yorktown did indeed divest itself of the reconfigured lot, prior to the taking.

The size of the reconfigured lot is uncontroverted. Exhibit A states that the reconfigured lot was 10,479 square feet. The parties disagree on the square footage of lots 2 and 3 after the reconfiguration (hereinafter referred to as the "before" value). I have no subdivision map or instrument survey that ascribes the square footage of these lots before the taking.[2] The Claimant ascribes a combined size of lots 2 and 3 as 18,255 square feet. The State ascribes a combined size of these lots as 18,344 square feet. I credit the State's appraiser's value as the most accurate, based on the sales history research in Exhibit A, which disclosed the conveyance of the reconfigured parcel and its size.

Yorktown attempted to sell the vacant land as two building lots, starting in February 1992, and listed the lots continuously up and until the taking in 1995. Despite the fact that Yorktown was successful in selling and building houses on at least three other lots in the subdivision, the subject lots remained vacant and Claimant did not receive even one offer during that time.

The threshold issue is what is the highest and best use of the vacant land before the taking. Both parties agree that the vacant land could be legally subdivided into two building lots; each lot independently met Town of Amherst zoning requirements. It was also physically possible to create the two building lots. The parties agree that there was no impediment related to the vacant land's topography or geology that would have prohibited the creation of two building lots. However, the fact that the creation of two separate building lots was legally permissible and physically possible does not necessarily mean that subdividing the vacant land was the highest and best use before the taking.

Financial feasibility is the crux of Claimant's problem. I do find persuasive the argument that, once the State notified the Claimant of the taking, any interest in the property would have waned, thus affecting his ability to sell. However, Claimant states he commenced his attempt to sell the vacant land as two separate building lots in 1992 and did not became aware of a potential taking of his land until some time in 1994. The vacant land had been listed for a least 18 months without a single offer on either lot prior to even a rumor of a potential taking. There must have been other reasons why the two lots did not sell, or why no purchaser even expressed an interest in them.

There is no doubt that selling the vacant parcel as two building lots would maximize Claimant's return on his investment; but someone has to be willing to buy them. I find the testimony and evidence support that the highest and best use for the vacant land prior to the taking was as one single building lot. I found Exhibit B helpful in making this determination.

Exhibit B is the Town of Amherst tax map for 041.04, 041.19, and 055.07. The first two sheets show Heim Road and the affected parcel. The lots fronting on Heim Road are, generally, greater than 14,000 square feet.[3] Claimant's appraisal lists lot 2 as 9,799 square feet and lot 3 as 8,456 square feet prior to the taking; what I would consider well below average for the neighborhood and which I consider the salient reason that the lots were never sold.

The State's appraisal does not attribute specific square footage for lots 2 and 3, but ascribes a value of 18,344 in total. Consistent with their position that the highest and best use for the subject parcel was as a single building lot, the State's appraiser valued the land as a single building lot prior to the taking.

Inasmuch as I have determined that the highest and best use of the subject parcel prior to the taking was as a single building lot, I credit the State's appraiser's sales comparison approach, which used the single building lot model. Therefore, I find that the fair and reasonable market value of the subject land before the taking was $22,900.

Claimant's problem selling the undersized lots was further exacerbated by the State's taking a total of 4,950 square feet. Claimant's appraisal lists the square footage after the taking as 7,445 for lot 2 and 5,860 for lot 3, making them substantially smaller and forcing them to sell the vacant land as one building lot.

Both parties submitted appraisals for the after value on the subject parcel using the single building lot model and a taking in the amount of 4,950 square feet. As discussed above, the before lot measured 18,344 square feet, making the after lot 13,394 square feet. I reviewed the sales comparison approach for the after value based on a parcel that size.

I carefully reviewed each comparable sale in both appraisals. I found the two corner lot sales as adjusted in the State's appraisal and the one corner lot sale as adjusted in the Claimant's appraisal substantially similar to the subject parcel after the taking. The three corner lots' prices per square foot range from $1.28 to $1.35. I shall use the average of these sales, or $1.32, as the value per square foot of the subject parcel. Thus, the fair and reasonable market value of the land after the taking is $17,680.

I note that Claimant's appraiser explained that the taking resulted in a reduction of road frontage from 217.98 feet to 187 feet and opined that a reduction in road frontage could have negatively affected that value of the parcel. While that would most certainly be true for a commercial property, I find it unpersuasive as related to a residential property and, thus, have not adjusted my ascribed value accordingly.

I find that Claimant is entitled to an award of $5,220.00, with statutory interest thereon from the date of the taking, August 24, 1995, to February 24, 1996 and from August 25, 1998, to the date of the decision herein 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 and/or damage to easements and appurtenant facilities for the construction, operation and maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer and railroad lines.

All other motion on which the Court may have previously reserved or which were not previously determined, are hereby denied.

It is ordered that, to the extent Claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act § 11-a(2).


October 20, 2003
Rochester, New York

Judge of the Court of Claims

[1]Although Yorktown Building Corporation (hereinafter "Yorktown") is the reputed owner of the appropriated premises, Yorktown had previously dissolved in approximately December 1994, leaving Claimant Daniel G. Tronolone as sole shareholder of the corporation and now the successor in interest to the premises. Any reference to Claimant in this decision refers to Mr. Tronolone, unless otherwise noted.
[2]Of interest is Exhibit 1, which gives the dimensions and ascribes a square foot value to lots 2 and 3 prior to the reconfiguration. Lots 2 and 3 on Exhibit 1 total 32,000 square feet. When I subtract the 10,479 square feet for the reconfigured lot, I ended up with a remainder of 21,521 square feet; well in excess of the two disparate, but close, figures for the combined square footage as set forth in both appraisals. Inasmuch as the parties are within 89 square feet in their values for the subject property both before and after the taking, I will assume that their computations are more accurate than mine as far as the size of lots 2 and 3.
[3]I computed square footage from the dimensions on the tax map, specifically, 041.19, realizing that the maps are not instrument surveys and that the result is only an approximation. The square footage ranges from approximately 14,000 square feet to 40,000 square feet. By comparison, the square footage of the original lots in the Heim Road Subdivision were 11,000 to 25,000, according to Exhibit 1.