This timely served and filed claim is for damages resulting from the permanent
appropriation by eminent domain of Claimant's
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
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
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
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
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
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).
LET JUDGMENT BE ENTERED ACCORDINGLY.