Charles and Jo Ann Sackett were the owners of an improved parcel of land
located in the Town of Farmington, Ontario County, that was taken in its
entirety by the State pursuant to the Eminent Domain Procedure Law and §30
of the Highway Law. The appropriation map and description are entitled S. H.
484, Canandaigua - Victor Road, Map No. 147, Parcel No.189 filed in the Ontario
County Clerk's Office on December 28, 1998, the agreed upon and stipulated date
of the taking. The Court has viewed the property.
The parties stipulated that the Sacketts were the fee owners at the time of the
appropriation having acquired title to the property by warranty deed dated
September 20, 1982 and recorded in the Ontario County Clerk's Office on the same
date in Liber 815, page 293.
On the date the property was acquired by the State, it was being used by
Claimants as an automotive repair and service center. In addition the Claimants
ran a used car sales facility on the property. The subject property was
rectangular in shape, at grade and located on the east side of State Route 332
in the Town of Farmington with 278± feet on the highway comprising its
westerly boundary; 278± feet on its easterly boundary and 122± feet
each on its northerly and southerly boundaries. Both appraisers agreed, and I
adopt, a finding that the total land area taken was 33,721 square feet. At the
time the Claimants purchased it, it had been improved with a masonry building
with two overhead doors and an island which, at one time, had operating gas
pumps, although it was not being used as a gas station at the time of purchase.
Over the following years Claimants made significant improvements to the
premises to adapt it to the use it had on the date it was acquired by the
Defendant. Mr. Sackett testified that he had the island removed and put in a
new asphalt surface in the front as well as the rear of the building, with
curbing where necessary; put on an addition with two additional overhead doors,
increasing the work area; installed new outside lighting, and installed a
stockade fence on the north, south and east sides of the property. Inside he
put in a new stronger concrete floor in order to hold pods used for frame
straightening, allowing him to pull up to 30 tons of force if necessary in the
process of straightening frames on trucks as well as automobiles. Three ground
lifts were also installed with a capacity of 8,000 to 10,000 pounds. Also
installed were one aboveground lift; a new electrical system and two heating
units, consisting of a 225,000 BTU hanging gas furnace and a radiant heating
unit located in the vehicle painting area. Claimants also installed
explosion-proof blower(s) for ventilation purposes (Transcript, pp. 9-13).
Mr. Sackett was unsure of how many motor vehicles could be placed on the
property at any one time, but estimated that 50 to 70 would not be unrealistic.
He added that the higher number of vehicles included those needing only minor
service and would not require being kept over night. The lower number reflected
the number of cars requiring more extensive work and could be stored on the
premises for longer periods of time.
The premises were leased by Claimants to a wholly-owned family corporation
which in turn employed Mr. Sackett, his sons and others at the repair and
service and used car facility.
The property had a preexisting, nonconforming use in a Restricted Business Zone
which prevented like properties with the same zoning designation from being
developed without first acquiring a variance. However, since Claimants'
property was being used as a repair/service facility prior to the change of
zoning, its use was not affected by the change and could continue to exist as
such until that use was discontinued for the requisite period of time.
At the time of trial, and upon my viewing of the subject premises (Court of
Claims Act §12), all the improvements had been removed. However, from a
review of Defendant's photographic Exhibits B and C, as well as the
photographs contained in both appraisals, Claimants' Exhibit 2 and Defendant's
, it is apparent to me that Claimants maintained both the interior and exterior
of the building, as well as the grounds, in good to very good condition, giving
consideration to the type of business Claimants operated and the amount of dust
and detritus usually associated with this endeavor.
There was a factual dispute between the appraisers as to the size of the
improvement. Defendant's appraiser opined that the building area measured at
4,906± square feet, specifically excluding the mezzanine. Claimants'
appraiser utilized a ground measurement of 4,716± square feet and added
450± square feet for the second level mezzanine for a total of 5,166±
square feet. The mezzanine was apparently being used as an office at the time
of the taking. I find that the mezzanine is part of the building, was a usable
and functioning space at the time of the taking, and therefore adopt Claimants'
appraiser's measurement of 5,166 square feet as the size of the improvement.
Each appraiser determined that the highest and best use of the subject property
at the time it was acquired was as it was developed and being used at that
Both experts considered the three basic approaches for valuing properties.
Claimants' expert relied on the market data approach. Defendant's expert used
the cost less depreciation and income approaches to verify the value he had
assigned to the subject property by using the market data approach, the approach
upon which he relied in fixing his opinion of value.
I have given no weight to Defendant's expert's opinion insofar as it relied on
the cost approach, since the subject was clearly not a unique property.
Further, I have given little weight to its expert's determination of value as
arrived at via the income approach, since most of his comparables were located
in Monroe County, which, in my opinion, weakens their usefulness in arriving at
income streams for rental properties in Ontario County. I appreciate that he
was guided by his basic premise that appraisers cannot "create the market, we
can just interpret the market" (Transcript, p. 149), a phase he employed
frequently during his testimony. While that may be true, I find it difficult to
accept that he was unable to find sufficiently comparable leases in Ontario
County and the adjacent municipalities. It was apparent to me that he really
had not acquainted himself fully with the area, as cross-examination disclosed
several errors in his descriptions of the area (Transcript, pp.143-144). While
perhaps of no real concern to him in the preparation of his final work product,
it did, in my opinion, affect his credibility and demonstrated a lack of
thoroughness on his part in finding comparables in the subject's county. I am
fully cognizant that experts may have to venture outside the area of an acquired
property but when, as in this case, the expert is unaware or, worse, has failed
to take the time to verify the data describing the general area, his credibility
My criticism of the appraisals is not limited to Defendant's expert. Equally
distressing was the Claimants' expert's failure to determine a separate and
discrete land value as required by 19 NYCRR, Part 1106.2(a)(4)(ii).
Interestingly, this rule was repealed, effective January 23, 2002, while the
Uniform Rules for the Court of Claims, 22 NYCRR 206.21(b) requires each
appraisal to set forth separately the value of land and improvements, and that
provision has not been repealed. Regardless, Claimants' appraisal was certified
in March 2000 and filed in August of that year, long before the repeal of that
portion of the Uniform Standards of Professional Appraisal Practice. While not
fatal to his analysis of value based on a whole-to-whole approach, it certainly
impacted my assessment of his work product. Further, his admission of not
having done a complete analysis of the subject's highest and best use, relying
instead on what the commercial activity in the area was like at the time of the
appropriation is, in my opinion, marginally acceptable.
Nevertheless, both experts ultimately agreed that the highest and best use for
the subject was commercial, including its use on the date of acquisition, and
both came to rely on the market data approach in determining the subject's
value. As a consequence, I have a sufficient basis upon which I can make a
determination of the property's value by utilizing the Defendant's analysis of
land value and the information both parties used in their respective
whole-to-whole or market data approaches to value.
In analyzing the unimproved sales relied on by the Defendant's expert, Sale #1
(located north of the subject) is truly the most comparable, and, accordingly,
was given the most weight. However, I also gave weight to the additional sales
proffered, with particular emphasis being given to Sale #3 since Sale #2 is more
than twice the size of Sales #1 and # 3,
and close to three times the size of the subject. Defendant's appraiser, in my
opinion, failed to establish that his adjustment for time adequately reflected
the increases in value to properties in the area over the respective time
periods. For instance, Sales #1 and #2 both occurred in 1992, and Sale #3 in
1996, some six years and two years, respectively, prior to the appropriation.
His upward adjustment for time fails to properly reflect the fact that the area
where these properties were located was experiencing an increase in value, a
trend supported by the comparables and the record. While it is clear that the
increase in value from year to year is rarely ever uniform, it is also clear
that, in accepting that as a fact, the increase in value was greater than what
he proposed. I therefore adjust the increases in Sale #1 from $0.29 to
$0.38/sq. ft.; in Sale #2 from $0.33 to $0.51/sq. ft., and in Sale #3 an
increase from $0.14 to $0.27/sq. ft.
There should also be a further adjustment to properly reflect the size
differential between the sales and the subject to appropriately demonstrate the
axiom that smaller size parcels will command higher per square foot values than
larger parcels. Consequently, each adjustment for this factor should be
increased as follows: Sales #1 and #3, additional increases of $0.19 per sq.
ft. to $0.31/sq. ft., and Sale # 2, an additional increase from $0.41/sq. ft. to
With these adjustments being made, I fix the fair and reasonable land value for
Claimants' property to be $2.96/sq. ft., for an overall value of $99,815.00 (R)
at the time of acquisi-tion. While I have made the finding of the value of the
land, this was a complete taking, and as such, final valuation does not depend
upon a separate valuation of the land. Indeed, both appraisers incorporated the
total land area into their valuation of the improvements, and thus provided an
opinion of the total valuation by providing whole-to-whole comparables, opining
a square foot value thereof, and applying that value to the square footage of
the improvements. I have adopted their approach. Accordingly, the land-only
valuation above is not separately incorporated into my calcu-lations, and
damages will be rendered solely upon my whole-to-whole calculations, which are
Both parties, in their whole-to-whole (market data) analysis, used the sale to
Kost Tires as a comparable, to which I have given great weight. However, the
treatment of this sale is not without controversy. The background of the sale
reveals that, at the time it was sold, two separate deeds from two separate
grantors were issued. The transactions occurred on the same date and both
conveyed the fee to the same grantee, Michael G. Kost, Sr.: one from Louis
Mosier, and the other from Mosier Enterprises, Inc. The Defendant included both
transactions to arrive at a value, reasoning that the grantee purchased both for
possible future expansion of the existing business he was operating on the
premises at the time of purchase. Claimants' comparable analysis involved only
the improved parcel. Claimants' appraiser opined that the purchase of the
unimproved second parcel was unrelated to the improved parcel since it involved
a different grantor. Defendant's position might appear to be the more logical
approach, since it makes no sense to assume that these sales were unrelated to
the grantee's future plans and, at the very least, insured that he would not
have to deal with some stranger should future expansion become a necessity.
However, that does not in any way taint the Claimants' expert's use only of the
sale of the improved parcel in his analysis, since it is obvious that the
grantee chose to keep them separate and not incorporate these transactions into
As a consequence, I have relied more on the Claimants' appraiser's analysis of
the sale than the Defendant's expert, since the election to treat both parcels
as one sale resulted in a higher sale price and greater square footage. This
approach, in my opinion, effectively distorted his interpretation of the sale as
a true comparable and, to a degree, his credibility.
I am also struck by the fact that Defendant's appraiser used two whole-to-whole
comparables located in Monroe County in two locations which differ from
Claimants' property location in several meaningful respects, including location
and economic environment. It is difficult to accept that Defendant's expert was
unable to locate sales within the area of the subject which could be considered
as comparable and then adjusted accordingly. Claimants' expert was able to
locate at least three that were within reasonable proximity to the subject and
attempted to make appropriate adjustment to allow for differences between
In arriving at my conclusions as to value, I have given greater consideration
to the Kost sale, utilized by both appraisers, but given no weight to any
adjustment made by the State's appraiser for size or land-building ratio since
he chose, erroneously in my opinion, to include the sale of the vacant rear
parcel in his determinations.
It must be recalled that the subject did not comply to the current zoning
regulations at the time it was acquired and its nonconforming use was permitted
to continue; to wit, it was "grandfathered" in. While it was not in conformity
it could continue to operate as a sale and repair facility as long as the use
was continued without interruption. In my opinion, that fact would be a
consideration of any good faith purchaser, and as such it has been factored into
my conclusion of value.
I do not agree with the Claimants' expert that there should be no adjustment
for time, and accept as appropriate that adjustment determined by the State's
expert. Claimants' adjustment of +25% for the superiority of the subject's
square footage to front footage ratio is far too generous and must be reduced to
accurately reflect this attribute. Further, I do not believe that the record
can support the Claimants' excessive +15% adjustment for the subject's superior
fixtures and technical realty. It is apparent that he failed to properly
consider the depreciated value of these items when the appropriation occurred.
As a result I have reduced that adjustment to +10%. Claimants' appraiser's
continuing generosity in attempting to reflect the subject's superior physical
condition over that of Sale #1 needs to be reduced in order to accurately
reflect this factor. I agree that the subject's improvements were better than
the sale, but his opinion of the difference in value fails to accurately reflect
that attribute. Accordingly, I have reduced that adjustment by 10%, to +10%.
Therefore, the Claimants' adjustments should be a net +35%. Accordingly, the
adjusted square foot value of this comparable is ±$118.89/sq. ft.
I have also reviewed Claimants' Sales #2 and #3 and find that, while Sale #2 is
the least comparable to the subject of the two, it is still useful in
determining the value of Claimants' property. In my analysis of this sale, based
on the testimony adduced at trial, it is apparent that the adjustments made by
Claimants' expert do not adequately demonstrate the marked differences between
the respective properties. In the first instance, I credit the State's expert's
testimony that one of the motivations for this sale was the buyer's interest in
insuring that another party did not acquire the area which was adjacent to and
abutting her existing car sales and service facility. Such a factor requires an
additional downward adjustment. While I agree that the sales location is
superior to that of the subject, the downward adjustment made by Claimants does
not accurately reflect sales superiority and further downward adjustments are
necessary to reflect this factor. The newer construction of the sale also
requires further adjustment in the attempt to bring it into parity with the
subject. When these adjustments, of say 28%, are applied I find that the
adjusted value of this comparable to be ±$115.25/sq. ft.
Regarding Sale #3, I have made a minor downward adjustment of 5% for time to
reflect the passage of time from the date of the appropriation to the date of
sale. Further, I concur that no adjustment was warranted for location, as the
sale and the subject are equal in location. While the subject enjoys a
superiority in the analysis of the square foot to front footage ratio, I find
that an upward adjustment to the sale of 20%, not 40%, adequately reflects that
superiority. I adopt as accurate the subject's superior fixtures and technical
realty, but find that the more realistic adjustment to reflect this difference
is a positive adjustment of 5%, not the appraiser's 10%. With these factors
being given full consideration, I find that the adjusted value for Sale #3 to be
I decline to examine comparable Sale #4, because of its location in Monroe
County and its relative distance from the subject in Ontario County.
Interestingly, however, its unadjusted sale price of $116.78/sq. ft. favorably
compares to the adjusted values from the other three comparables.
Based upon the foregoing comparables and my discussions thereof, I fix the
value of Claimants' property at $116.40/sq. ft. (R) and fix their damages at
Prior to trial, the Claimants demanded the production of four documents they
assert are admissible against the Defendant as an admission against its
interest, since these documents reflect a value for the subject $10,000.00
greater than that set forth in its trial appraisal. These documents were marked
as Court Exhibits 1 through 4, and I reserved decision on their admissibility or
It is well established that if such documents are relied upon by the State in a
highway project which will be funded through the use of federal funds earmarked
for this use, they are discoverable and may be used in the cross-examination of
the State's expert witnesses (
Nunes v State of New York
, 59 NY2d 745). I engaged in an extensive
colloquy with Defendant's counsel regarding these documents and how they were
used by it in seeking federal highway funds for this project. It is clear that
counsel was unable to clarify questions raised by me, and he offered to produce
an individual for that purpose if I so directed. Since the Defendant knew in
advance of trial that it might be required to produce witnesses to testify
regarding the use of these documents, the offer was rejected. It was, and is,
my opinion based on this record that these Court Exhibits would be admissible.
However, since the purpose of the Claimants was to show that the damages set
forth in them would reflect the subject's value to be $10,000.00 more than that
contained in the trial appraisal, I now deny their request in light of my
determination of the subject's value. I have not considered these four exhibits
in arriving at the values set forth above. Should this issue be raised in future
appropriation cases which come before me, each application will be considered on
a case-by-case basis, and Defendant should be prepared to respond to such a
request accordingly and be prepared to conduct plenary hearing(s) prior to trial
to factually support any objection it makes regarding
Thus, Claimant is awarded the sum of
, with appropriate interest thereon from December 28, 1998,
the date of the taking, until June 28, 1999, six months subsequent to the date
of taking, and from June 8, 2000, the date of filing of the claim, to the date
of this decision, and thereafter to the date of entry of judgment herein,
pursuant to CPLR 5001 and CPLR 5002; EDPL §514; Court of Claims Act
§19(1); and subject to Court of Claims Act
The award herein is exclusive of the claims, if any, of persons other than the
owners of the appropriated property, its tenants, mortgagees and 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 property or contiguous thereto,
and is exclusive also of the 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, telegraph,
pipe, water, sewer, and railroad lines.
All motions not heretofore ruled upon are now denied. To the extent that
Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims
LET JUDGMENT BE ENTERED ACCORDINGLY.