WECHSLER v. THE STATE OF NEW YORK, #2004-019-027, Claim No. 88857
This is a timely filed appropriation claim for a permanent easement of
exclusive hunting, fishing and trapping rights in Sullivan County, New York.
Claimant is awarded $316,562.50 in damages for the taking of rights parcel;
denied consequential damages for adjoining property owned in fee; and State
found liable for abandonment of taking of portion of adjoining fee parcel.
BENJAMIN I. WECHSLER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
NIXON PEABODY, LLPBY: David L. Cook, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Michael Sims, Assistant Attorney General, of counsel
November 29, 2004
See also (multicaptioned
This is a timely filed claim for the appropriation of claimant's permanent
easement of exclusive hunting, fishing and trapping rights on 1,800 acres of
property in proceedings entitled "Project Sullivan 72.1" as reflected on Map
No. 10,767 pursuant to the Eminent Domain Procedure Law ("EDPL"). Claimant also
seeks consequential damages based upon the theory of unity of use relating to
contiguous property owned by him in fee resulting from the taking of said
easement. Additionally, claimant seeks the following: EDPL 702 (B) damages
resulting from the abandonment of the taking of the fee parcel; consequential
damages to his personal residence located on the fee parcel; and an order
directing the State to file an amended corrected map with respect to an alleged
mistake in the appropriation map that may have resulted in an unintentional
taking of 4.141 acres of claimant's fee parcel.
It is undisputed that vesting occurred on October 12, 1993, when the State
filed a map with the Clerk of the County of Sullivan acquiring claimant's
permanent easement for exclusive hunting, fishing and trapping rights on a
1,800-acre parcel (owned by the State) which will hereinafter be referred to as
the "Rights Parcel".
The Rights Parcel is vacant and unoccupied and is best described as a wilderness
area. For the most part the topography is uneven, steep, and mountainous. It
is undisputed that the Rights Parcel cannot be developed. (Cl.'s Appraisal, p
82). The total acreage of the Rights Parcel is divided by the Neversink River
with approximately 1,400 acres on the east bank of the Neversink River and 400
acres on the west bank adjacent to and north of the claimant's land owned in
fee. The Rights Parcel spans two local municipalities, the Towns of Forestburgh
and Thompson, in Sullivan County, New York, also known as the Catskill Mountain
area. The Rights Parcel includes 5.5 miles of the Neversink River's shoreline.
As a result of this taking, claimant's permanent easement for exclusive hunting,
fishing and trapping rights was extinguished.
Additionally, it is undisputed that the State's initial procedures included a
proposed taking of 1,067 acres out of claimant's adjoining 2,325 acres owned by
him in fee. Claimant's entire 2,325- acre fee parcel is hereinafter referred to
as the "Fee Parcel".
The Fee Parcel spans the same municipalities noted above, but is located
entirely on the west side of the Neversink River. Claimant's personal residence
is located on the Fee Parcel. Otherwise, the Fee Parcel is vacant land and
unoccupied with the exception of two small hunting cabins which have no impact
in this matter. The Fee Parcel is primarily wilderness with slight to moderate
sloping topography, becoming steeper near the river, as well as approximately
165 acres designated as wetlands. It is undisputed that the State's initial
condemnation procedures commenced on February 3, 1988, sought not only the
acquisition of claimant's permanent easement of exclusive hunting, fishing and
trapping rights on the Rights Parcel, but also 1,067 acres from the Fee Parcel.
The court believes a preliminary statement regarding the parties' respective
positions will be beneficial in placing the rest of the discussion into context.
Claimant's position is based on the belief that the Rights Parcel and the Fee
Parcel should be viewed as one unit based upon a unity of use theory, thereby
entitling claimant not only to direct damages from the taking of the Rights
Parcel, but also consequential damages to the Fee Parcel as a result of said
taking. The State holds a contrary view. The State views the Rights Parcel as
separate and distinct from the Fee Parcel and argues that the taking of the
Rights Parcel had no impact on the Fee Parcel. The parties' positions are
reflected in their respective appraisals with claimant's expert valuing the
Rights Parcel and Fee Parcel as one parcel, while the State's expert appraises
the parcels separately.
This claim was filed with the Clerk of the Court on February 16, 1994. The
appropriation maps and descriptions contained therein are adopted by the court
and incorporated by reference, subject to the map mistake analysis
The appraisers for both parties conclude that claimant was the owner of a
permanent easement for exclusive hunting, fishing and trapping rights on the
Rights Parcel until the State's appropriation thereof and that claimant is the
owner in fee of the contiguous Fee Parcel. This geographical area and these
parcels in particular have been described as an "[a]rea around the Neversink
River [which] unquestionably possesses natural beauty and wilderness, as well as
geological, ecological and historical significance." (Matter of Wechsler v
New York State Dept. of Envtl. Conservation
, 153 AD2d 300, 302, affd
76 NY2d 923, 925).
The trial of this matter was held from January 21, 2003 through January 24,
2003 in the Binghamton District. Thereafter, numerous post-trial submissions
were submitted by the parties.
The court has made the required viewing of the properties which are the subject
of this claim. (CCA 12 ). Due to the size and nature of the properties, the
court and counsel agreed upon a schedule whereby the court would spend an entire
day viewing portions of the parcels as selected by the parties. The original
dates for the viewing were in the fall of 2003, but were cancelled due to
weather conditions and then postponed again until the close of the hunting
season. The viewing was ultimately conducted on May 7, 2004 with parties and
counsel present. The court's observations regarding said viewing will be
interspersed where necessary throughout the discussion below, but suffice it to
say, the viewing confirms that these parcels possess unquestionable natural
The prior Memorandum-Decision & Order of the Hon. Jerome F. Hanifin dated
May 11, 1995 and filed June 6, 1995, addressing the State's motion to dismiss
warrants a brief review. (
Wechsler v State of New York
, Ct Cl, filed June 6, 1995, Hanifin, J.,
Claim No. 88857, Motion No. M-50589). This claim originally contained three
causes of action. Claimant's first cause of action sought equitable relief by
declaring the State's vested title in the Rights Parcel to be null and void;
declaring claimant to be the owner of the Rights Parcel; and striking the filed
taking map. The court dismissed the first cause of action in its entirety.
Claimant's second cause of action sought damages for the taking of the Rights
Parcel and consequential damages representing a decrease in value of the Fee
Parcel, plus EDPL 701 costs. The court permitted the second cause of action to
continue in its entirety. Claimant's third cause of action was dismissed,
except to the extent that it stated an EDPL 702 (B) cause of action alleging the
State improperly abandoned the taking of the Fee Parcel by alleging the State is
"[o]bligated to reimburse the condemnee, an amount...for actual and necessary
costs...and other damages actually incurred by such condemnee because of the
acquisition procedure." (Wechsler
, Ct Cl, filed June 6, 1995, Hanifin,
J., Claim No. 88857, Motion No. M-50589, p 14 quoting EDPL 702 [B]). Judge
Hanifin summarized the issues remaining for trial as follows:
[i]n sum, the Court will allow Claimant to proceed with his Claim against the
State only on the grounds that:
(1) the State appropriated property and failed to properly compensate Claimant
(including possible consequential damages
based on a theory of unity of use) as set forth in the second cause of action;
(2) the State is liable for its abandonment of appropriation proceedings on
Claimant's land located adjacent to the "Rights" property, pursuant to EDPL
, Ct Cl, filed June 6, 1995, Hanifin,
J., Claim No. 88857, Motion No. M-50589, p
Claimant is entitled to fair compensation for property appropriated by
Matter of Town of Islip [Mascioli]
, 49 NY2d 354, 360). To that end the
court is required to value the subject property according to its highest and
best use as of the date of vesting with the measure of the damages being the
fair market value in its highest and best use on that date. (Town of Islip
, 49 NY2d at 360; Matter of County of Clinton [Gagnon]
AD2d 898, 899). The fair market value is the price for which the property would
sell if there was a willing buyer and a willing seller under no compulsion to
either buy or sell. (Matter of Allied Corp. v Town of Camillus
, 80 NY2d
351, 356, rearg denied
81 NY2d 784).
and Best Use
It is well-settled that "[i]t must be established as reasonably probable that
the asserted highest and best use could or would have been made of the subject
property in the
[citation omitted]. A use which is no more than a
speculative or hypothetical arrangement in the mind of the claimant may not be
accepted as the basis for an award [citation omitted]." (Matter of City of
New York [Shorefront High School - Rudnick]
, 25 NY2d 146, 149 [emphasis
added]; Crammond v State of New York
, 33 AD2d 861). Further, the highest
and best use must be supported by credible evidence meaning that an indication
that there is a "mere possibility" of a future use will be deemed speculative
and insufficient. (Crammond
, 33 AD2d at 861).
The parties positions on highest and best use
The parties' experts do not agree on the highest and best use of the property
and each party takes issue with the opposing expert's conclusions and
Claimant's expert, Eugene Albert of Albert Valuation Group, Inc., determined
the highest and best use of these properties by viewing the Rights Parcel and
Fee Parcel as one unit based upon a presumption of a unity of use between the
Rights Parcel and the Fee Parcel. Based upon a theory of unity of use, Mr.
Albert declares the highest and best use of the property in both the before and
after to be a residential subdivision development on the Fee Parcel containing
upwards of 400 units as enhanced by an undivided interest in the hunting,
fishing, and trapping rights on the Rights Parcel. (Cl.'s Appraisal, p 82). In
support thereof, claimant relies upon his own use and plans for development of
the property; the Town's conceptual approvals of the development plans; and two
offers of purchase from developers. (Cl.'s Reply Brief, p 15). Mr. Albert uses
the market data approach for purposes of valuation.
The State's appraiser, Gerald Griffin, Jr., of Griffin Valuation & Realty
Services, Ltd., opines "[t]he highest and best use of the property is
recreational & residential with limited demand." (St.'s Appraisal, p 14).
Stated another way, the State views the highest and best use of the Rights
Parcel as recreational only and while conceding that the Fee Parcel has a
limited demand for residential development, argues it falls far short of the 400
unit residential subdivision envisioned by claimant. Mr. Griffin reached this
conclusion after an analysis of a variety of factors including: the actual
building permit history for the Town of Forestburg; the actual subdivision
history in the Town of Forestburg; the Fee Parcel's own independent
opportunities for fishing, hunting, and trapping separate and apart from the
Rights Parcel; and the difficulty of physical access from the Fee Parcel to the
majority of the Rights Parcel on the eastern side of the Neversink River.
(St.'s Brief, pp 18-19). Mr. Griffin uses the income capitalization approach
for valuation purposes of the Rights Parcel, while using the market data
approach in valuing the Fee Parcel.
Unity of Use
In examining the parties' arguments relative to highest and best use, the court
finds the issue of unity of use to be the distinguishing factor on this issue
and ultimately dispostive of this case as a whole. As previously noted,
claimant's expert has presumed a unity of use between the Rights Parcel and Fee
Parcel from which his methodologies and valuations flow, while the State's
appraiser rejected any unity of use between the two parcels. It is well-settled
that in order for separate parcels, owned by different individuals or entities,
to be treated as one unit for purposes of determining consequential damages, if
any, "[t]here must be (1) contiguity, (2) unity of use and (3) unity of title or
ownership [citations omitted]." (
Erly Realty Development v State of New York
, 43 AD2d 301, 303-304, lv
34 NY2d 515).
The court will focus on the second element, unity of use, which is fact
Most telling on this subject is that claimant's expert merely assumed a unity of
use rather than offer any analysis on the subject. At trial, claimant's expert
testified as follows:
Mr. Pickett (AAG): [w]here in your report do you do an analysis of the unity
between the rights parcel and the fee parcel?
Mr. Albert: It's so obvious I didn't have to do anything.
Mr. Pickett (AAG): But, you just - -
Mr. Albert: That's, that's what he owned. He owned everything.
Mr. Pickett (AAG): You assumed it. Is that correct?
Mr. Albert: I saw the deeds. I mean, he, he, he acquired this property way
back and he owned it for years before The [sic] State came around to
think about taking it. And, he owned 2,325 acres of rights and adjoining that
1,800 acres, excuse me, of fee and adjoining it 1,800 acres of rights.
Mr. Pickett (AAG): So, you feel you (Inaudible) three requirements for
Mr. Albert: And, and, he leased that property - -
Mr. Pickett (AAG): Okay.
Mr. Albert: Almost irrespective of the boundary line between the rights and the
fee to the hunting clubs.
Mr. Pickett (AAG): Mr. Wechsler testified about what his intention was to
develop the property, and I'm summarizing his testimony, develop the property as
a single unit with lot sales on the fee and some rights conveyed in the rights
parcels. Is that correct?
Mr. Albert: And, reserving the rights for the use of all.
Mr. Pickett (AAG): Right. And, that was your assumption?
Mr. Albert: That sounds like unity of use to me.
(T-V2, pp 248 [line 17] -
In post-trial submissions, claimant attempts to support this presumption by
arguing that as long as the two parcels are used for complementary purposes they
need not have been put to the same use. Claimant cites cases, among others, in
which unity of use has been found on two separate parcels used as an automobile
dealership and a service station; a gravel pit and a concrete plant; and a
mobile home park and recreational use. (Cl.'s Post-Trial Brief, p 9 citing
Geary v State of New York
, 95 AD2d 965, lv denied
61 NY2d 605;
Strong v State of New York
, 38 AD2d 241; Glazer v State of New
, 54 AD2d 1077). Claimant's theory on highest and best use is linked to
the subdivision potential of the Fee Parcel which in turn is tied to his own
testimonials relative to past conjunctive use between the parcels and his
negotiation strategies in obtaining these properties and in selling portions
therefrom; the conceptual approvals obtained from the Town of Forestburgh; and
the DEC's own publicized comments regarding subdivision potential.
For the State's part, it argues a lack of unity is demonstrated by the
following: claimant sold five lots from the Fee Parcel and excluded access to
the Rights Parcel from each;
difficulty of access from the Fee Parcel to the Rights Parcel; and the Fee
Parcel's own abundant hunting and fishing. (St.'s Proposed Findings of Fact and
Conclusions of Law, ¶ ¶ 20 & 22). Further, the State argues a
massive residential subdivision to the extent of 400 units is unlikely. (St.'s
Proposed Findings of Fact and Conclusions of Law, ¶ ¶ 13-16). The
State highlights various deficiencies in claimant's expert's analysis on the
residential subdivision issue including: (a) claimant's expert admission that he
did not perform a subdivision analysis (T-V2, p 303); (b) limited demand for
residential lots and subdivision history in the Town of Forestburgh was ignored;
(c) lack of proper consideration for the Lynmark offer; and (d) limited history
of the issuance of new building permits in the Town of Forestburgh from 1983
Claimant disagrees with the State's analysis and argues that the State's own
conclusion of only a limited demand (e.g., five subdivisions) is faulty. More
specifically, claimant argues that the State's analysis was faulty including:
failing to distinguish between local demand as compared to a metropolitan market
base; misleading absorption rate analysis; improper averaging/failing to adjust
for different subdivisions; and inclusion of unsuccessful subdivision
Subdivision Development Potential
This court finds that although the two contiguous uses need not be identical,
the cases cited by claimant all demonstrate something lacking here, namely that
"[t]here must be such a connection or relation of adaptation, convenience, and
actual and permanent use, as to make the enjoyment of the parcel taken
reasonably and substantially
to the enjoyment of the parcel left, in the most advantageous
and profitable manner in the business for which it is used." (Nichols on
Eminent Domain, § 14B.03, p 14B-14; emphasis added). Or stated another
way, the relevant question is whether the near future holds a reasonable
probability of the lands in question being put to their highest and best use in
combination with the other parcel so as to affect their market value. (Nichols
on Eminent Domain, § 14B.03, p 14B-15 - 14B-16).
In this court's view, claimant's reliance on the theoretical possibility of a
subdivision development on the Fee Parcel has been an abstract possibility for
too long. The court is mindful that in 1986 claimant received conceptual
approval for a low-density residential development from the Town of Forestburgh
Planning Department, but as pointed out by the State this was an approval
regarding the possibility - not the probability - of such development. (Cl.'s
Exs. 45 & 46). In sum, the primary proof of claimant's argument for unity
of use is claimant's own testimonial evidence that such was his intention. The
court does not doubt that since obtaining the Fee Parcel and the easement on the
Rights Parcel in 1968 claimant has envisioned a subdivision potential of his Fee
Parcel. However, claimant's vision never advanced to an actual project other
than the town's conceptual approval of the idea. By comparison, the Third
Department has found that a litigant had established development plans by
"[l]ining up funds and having site plans drawn for garden apartments." (
Rugar Bay Corp. v State of New York
, 54 AD2d 788, 788). Here, the Fee
Parcel and the Rights Parcel have existed side by side for decades with the
occasional lessee crossing over. In this court's view, the Fee Parcel "was in
no way necessary to the enjoyment" of the Rights Parcel - and vice versa.
(City of Buffalo v Goldman
, 63 AD2d 828, 829).
Offers to purchase
Claimant also relies upon two offers to purchase to corroborate his expert's
conclusion relative to highest and best
(T-V1, pp 311-312; Cl.'s Post-Trial Brief, pp 7 & 11). The first offer from
The Lynmark Group, Inc. (hereinafter "Lynmark Offer") is an unsigned "Option
Contract to Buy Real Estate" dated February 1988. (Cl.'s Ex. 39). In 1987,
Lynmark, a professional development company, entered into negotiations with
claimant regarding a plan to purchase portions of the Fee Parcel, together with
the exclusive hunting, fishing and trapping rights on the Rights Parcel, for
purposes of subdivision development, ultimately resulting in a proposed offer
for $8 million. (Cl.'s Ex. 39). A portion of the payment thereof was
conditioned upon Lynmark receiving municipal approval to subdivide into a
minimum of 450 lots. (Cl.'s Ex. 38, p 2 [Item B subd b]). The Lynmark Offer
was reduced to writing but was not executed by any Lynmark officer or agent.
There was no testimony at trial from any Lynmark
Claimant argues that the State's
publicized decision to proceed with condemnation plans for said property caused
Lynmark to withdraw its offer of purchase. (Cl.'s Ex. 41, p 2).
The second offer to purchase is from Julien J. Studley, Inc. and Arthur G.
Cohen Properties, Inc. (hereinafter "Studley/Cohen Offer"). (Cl.'s Exs. 42
& 43). The Studley/Cohen Offer involved a portion of claimant's Fee Parcel
as well as the exclusive hunting, fishing and trapping rights on the Rights
Parcel for a sum not to exceed $10.5 million. The Studley/Cohen Offer is
undated and unsigned. There was no testimony at trial from any Studley/Cohen
officer or principal. Claimant asserts that the Studley/Cohen Offer was
withdrawn due to the State's threat of condemnation.
It is well-settled that offers to purchase property received by an owner are
not admissible as evidence of value because they are too uncertain, indefinite,
unreliable, and rely upon too many variables. (
Hine v Manhattan R. Co.
, 132 NY 477; Brummer v State of New York
25 AD2d 245, 248-249; see also
51 NY Jur 2d, Eminent Domain, § 192;
57 NY Jur 2d, Evidence and Witnesses, § 227). The same principles should
apply when, as here, unsubstantiated offers of purchase are used to support a
finding relative to highest and best use. Setting aside the issue of bad faith
- or at least the State's suspicions thereof - the court is still left with
offers of purchase which were not signed by the purported buyers. This court
finds that these unsigned offers do not equate to a legal commitment by or on
behalf of either prospective buyer under General Obligations Law § 5-703.
Moreover, claimant failed to offer testimony from either of these prospective
buyers at trial. In sum, claimant has offered no sound basis for this court to
deviate from the general rule that unsubstantiated offers to purchase are
excluded from evidence and, as such, the court sustains the State's objections
to these unsubstantiated offers upon which the court reserved upon at trial.
(T-V1, pp 117-118).
Difficulty of Access
The Rights Parcel is divided by the Neversink River, with approximately 1,400
acres located on the easterly side and the remaining 400 acres located on the
westerly side of the river. It is undisputed that a footbridge spanning the
Neversink River which was at one time used as a means of access from the Fee
Parcel to the easterly portion of the Rights Parcel has since been removed.
Wechsler v New York State Dept. of Envtl. Conservation
, 193 AD2d 856,
82 NY2d 656). As a result, there is only one of two ways to go
from the Fee Parcel on the westerly side of the Neversink River to the majority
of the Rights Parcel on the easterly side, namely either wade through and across
the Neversink River, or travel by car around the Neversink River approximately
fourteen miles as the court did at the viewing. Once at the Rights Parcel,
vehicular access is difficult. By way of example, based upon the court's
viewing, the "prospective buyer/hunter" living on the Fee Parcel but going to
the easterly (and major) portion of the Rights Parcel for hunting, if successful
in his hunting escapades, would need to drag a carcass through the Rights Parcel
to a vehicle and then travel some 14 miles around the Neversink River to the Fee
Parcel or, drag the carcass through the Rights Parcel and through and across the
Neversink River to the Fee Parcel. Either way, access to the Rights Parcel, to
and from the Fee Parcel, is problematic at best.
Conclusion: Highest and Best Use
Consequently, based upon the foregoing, this court finds that claimant's
conclusion of a unity of use between the Rights Parcel and Fee Parcel and thus
highest and best use of the Rights Parcel as the enhancement for a subdivision
on the Fee Parcel of hundreds of units must be rejected. (
Broadway Associates v State of New York
, Ct Cl, November 6, 2003,
Ruderman, J., Claim No. 103220 [UID No.
Stated another way, this
court finds that claimant's expert's conclusion relative to highest and best use
to be speculative and not supported by the credible evidence and, as such,
rejects claimant's appraisal in its
As such, the court finds that
claimant is not entitled to consequential damages for the Fee Parcel as a result
of the taking of the Rights Parcel due to a lack of unity of use, but rather
only direct damages resulting from the taking of the Rights Parcel. (Split
Rock Partnership v State of New York
, 275 AD2d 450, lv denied
770). Further, the court finds that the State's analysis of highest and best
use is supported by the credible evidence and now turns to the issue of
Having accepted the State's conclusion relative to the highest and best use the
court now turns to the issue of valuation of the Rights Parcel. In view of the
foregoing determination relative to claimant's failure to establish unity of
use, the court finds that claimant's direct damages resulting from the actual
acquisition of the Rights Parcel are measurable by the difference in the value
of said Rights Parcel before acquisition and the value of said Rights Parcel
after its acquisition by the State. As such, the court rejects claimant's
appraisal which relied on the unity of use principle and turns to the State's
(Ridgeway Assoc. v State of New York
, 32 AD2d 851).
Before Value: Rights Parcel
There are three generally accepted approaches to determine the value of real
estate: (1) the cost approach; (2) the income capitalization approach; and (3)
the sales-comparison approach. It is undisputed that the cost approach is
inapplicable here because the property is neither improved nor a specialty.
(St.'s Brief, p 22). The State reaches a $250,000 value of the Rights Parcel in
the before situation using the income capitalization approach based on leases,
both actual and similar, for hunting, fishing, and trapping. When a property is
income producing, as is the case of the subject property, the preferred method
of valuation is the income approach. (
City of Buffalo v Joseph Davis, Inc
., 32 AD2d 604, affd
869; Kurnick v State of New York
, 54 AD2d 1098, 1099). Considering the
income producing nature of the subject property and the absence of owner
occupancy, the court believes that the income approach is the best indicator of
the value and will rely on that approach as presented by the State. Moreover,
it is well-settled that actual rent is the best indicator of value, although
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
692; Kommit v State of New York
, 60 AD2d 945).
Here, there are four actual hunting, fishing, and trapping leases between
claimant and various sporting clubs spanning both the Rights Parcel and the Fee
Parcel. (St.'s Appraisal, p 32). The leases are summarized in the State's
appraisal as follows:
Members Annual Rent per acre acreage
Bear Paw 16 $6,000 $14.29 420
Big Bucks 18 $8,000 $21.05 380
Denton 18 $10, 200 $25.50 400
Eden Falls 27 $10,000 $20.00 500
(St.'s Appraisal, p 32; St. Ex. M; St.'s Addenda [Lease Summaries]).
Claimant objects to reliance on these actual leases as a basis for valuation in
light of claimant's testimony that the "[l]eases were for property management
purposes only rather than for income development." (Cl.'s Reply Brief, p 22).
While this statement may well reflect claimant's motivation for renting these
leases in the first instance, it does not negate the fact that these were
arm's-length transactions which are the best indicator of value. As such, the
court finds these actual leases to be the best indicator of value of the Rights
Turning to the State's analysis of these actual leases, the court notes that
the State's expert made two adjustments to the actual lease figures. First, the
State's appraiser took into consideration claimant's deposition testimony that
these leases allow the clubs to use both the Rights Parcel, as well as another
3,000 acres on the Fee Parcel for purposes such as cross-country skiing,
camping, birdwatching etc. (St.'s Appraisal, p 32). In an attempt to recognize
this additional value to these leases, the State's expert, Mr. Griffin, deemed
this right to use the additional 3,000 ± acres as worth $1 per acre.
(St.'s Appraisal, pp 32-33). The State then subtracted out from each annual
rent the sum of $3,000 (3,000 acres x $1) resulting in the following
State's Adjustment #1
Annual Rent less
$3,000 = Adjusted Rent acreage
Bear Paw $6,000 - $3,000 = $ 3,000 420
Big Bucks $8,000 - $3,000 = $ 5,000 380
Denton $10,200 - $3,000 = $ 7,200 400
Eden Falls $10,000 - $3,000 = $ 7,000
$22,200 1700 acres
(St.'s Appraisal, p 33).
Accordingly, based on this adjustment, the State found $22,200 in total rents
for a combined 1700 acres equaling an average of $13.06 per acre ($22,000 ÷
The State's second adjustment relates to Mr. Griffin's conclusion that the
Rights Parcel is of such superior topography to the Bear Paw property that the
Bear Paw lease should be removed from the analysis in its entirety. Thus, the
State's second adjustment which removed the Bear Paw property from the analysis
of the actual leases resulted in the following calculation:
State's Adjustment #2
Big Bucks $ 5,000 380
Denton $ 7,200 400
$19,200 1280 acres
Accordingly, the State's appraiser concluded that a total adjusted rent of
$19,200 for 1280 acres equals an average price of $15.00 per acre. (St.'s
Appraisal, p 33).
Based upon $15.00 per acre, the State then calculated the before value of the
Rights Parcel as $250,000 as follows:
Gross Potential Income
1,734 acres @ $15 per acre = $26,010
Vacancy Allowance 15% = ( 3,902)
Effective Gross = $22,108
Management 5% = $1,300
Insurance = $1,000
$19,808 ÷ 8% = $247,600 rounded off to $250,000
Appraisal, p 35).
With respect to the State's first adjustment, claimant argues that the State
did not establish how it arrived at the figure of $1.00 per acre deduction.
(Cl.'s Reply Brief, p 22). However, claimant did not offer any evidence to the
contrary. In view of the fact that claimant's appraisal has been rejected the
court is left with the State's unrebutted calculations and conclusions. (
, 32 AD2d 851). Accordingly, the court accepts the
State's first adjustment. With respect to the State's second adjustment of
removing the Bear Paw property from the analysis, the court finds that this
adjustment is proper due to the superior topography of the Rights Parcel
compared to the Bear Paw property.
Finally, claimant cross-examined the State's expert with respect to his
conclusions with respect to the capitalization rate, vacancy, management and
insurance allowances, but offered no proof to the contrary. The court finds an
adequate basis in this record to accept the State's capitalization rate which
was based on the B.A.A. Corp. Bond rate of 7.31%, together with an upwards
adjustment of .75% for lack of liquidity, for a total capitalization rate of
(St.'s Appraisal, p 35; Star Plaza v State of New York
, 79 AD2d 746).
With respect to the State's vacancy allowance of 15%, the court finds that a
vacancy allowance is inappropriate given the wilderness nature of this property
and the duration of these leases. (Wolnstein v State of New York
AD2d 990 [no vacancy allowance due to long-term lease]; City of Niagara Falls
, 40 AD2d 755 [property never vacant]; Sylviet Corp. v State of New
, 33 AD2d 635 [no vacancy allowance because of building's vacant
areas]). For the same reasons, the court finds that the State's management fee
of 5% should be lowered to 2½% in order to reflect the wilderness nature of
the property. (Wolnstein
, 33 AD2d 990). Finally, there is no basis in
this record to disturb the State's insurance allowance.
Based on the foregoing, the court calculates the before value of the Rights
Parcel as follows:
Gross Potential Income
@ $15.00 per acre
[Vacancy Allowance omitted]
Effective Gross $27,000
Management 2 ½ % = $ 675
Insurance = $1,000 ( 1,675)
$25,325 ÷ 8% = $316,562.50
Consequently, the court's conclusion of the before value of the Rights Parcel
is $316,562.50, rather than the $250,000 submitted by the State.
After Value: Rights Parcel
The State's valuation of the Rights Parcel after the taking or total direct
damages was $250,000 since the Rights Parcel was taken in its entirety. Using
the court's revised adjustments, the valuation of the Rights Parcel after the
taking is $316,562.50 since the Rights Parcel was taken in its entirety.
Damage to Wechsler's home
The State argues there is no damage to claimant's personal residence because
the house is oriented toward Gilman Pond, not the Neversink River; has abundant
access to hunting and fishing via the Fee Parcel; and is physically removed from
the Rights Parcel. (St.'s Post-Trial Brief, p 20). Claimant argues that there
is no comparison between a river versus a pond and that the river/gorge area is
greatly superior to the pond access. (Cl.'s Reply Brief, pp 17-18). Claimant
also objects to the State's opinion that claimant will not miss the hunting and
fishing on the Rights Parcel because he has so much available on the Fee Parcel.
Claimant argues valuation must address what was lost, not what the State thinks
he should have. In view of the court's determination herein relative to a lack
of unity of use between the Rights Parcel and Fee Parcel, the court finds that
claimant is not entitled to any consequential damages to his personal residence
located on the Fee Parcel flowing from the taking of the Rights Parcel.
Abandonment/Damages under EDPL § 702 (B)
The next issue presented to the court for determination is claimant's argument
that he is entitled to damages under EDPL 702 (B) due to the State's abandonment
of the taking of the Fee Parcel resulting from the failure to file a taking map
with respect thereto within the three year period specified under EDPL 401 (A).
(Cl's. Post-Trial Brief, pp 24-25). The State offers no substantive argument in
opposition to this issue other than a statement that damages for abandonment are
not proper. (St.'s Reply Brief, pp 10-11). The issue presented here is whether
claimant is entitled to such damages, not the amount of such damages in the
event liability is established since the court directed that such damages, if
any, would be determined at a later time if necessary.
EDPL 702 (B) states, in pertinent part, as follows:
[i]n the event that the procedure to acquire such property is abandoned
by the condemnor...the condemnor shall be obligated to reimburse the condemnee,
an amount, separately computed and stated, for actual and necessary costs,
disbursements and expenses, including reasonable attorney, appraisal and
engineering fees, and other damages actually incurred by such condemnee because
of the acquisition procedure.
It remains undisputed that from February 1988 through September 1993, the State
unequivocally stated its intent to appropriate 1,067 acres from the Fee Parcel,
together with the Rights Parcel. (Cl.'s Ex 44, pp 3, 8-9, & 11). In fact,
as noted by claimant, prior related decisions viewed the State's acquisition
plan to have included acquisition of the Rights and Fee Parcels simultaneously.
Matter of Wechsler v State Dept. of Envtl. Conservation
, 76 NY2d 923,
, 153 AD2d 300). Further, it is undisputed that the State
ultimately appropriated only the Rights Parcel when the taking map was filed on
October 12, 1993, without taking any portion of the Fee Parcel. In view of the
foregoing, and in the absence of any substantive opposition by the State, the
court finds that the State is liable for its abandonment of the appropriation of
1,067 acres of the Fee Parcel pursuant to EDPL 702 (B). The court will schedule
a conference call with counsel for the purpose of discussing resolution of EDPL
702 (B) damages.
Appropriation Map Mistake
The final issue presented to the court for resolution is an issue addressed in
separate post-trial briefs on what the parties have dubbed the "Appropriation
Map Mistake" issue relating to an apparent mistake in the appropriation map that
may have resulted in an unintentional taking of 4.141 acres of claimant's Fee
Parcel. At the core of this issue is the facial inconsistency of two documents,
the Taking Map filed on October 12, 1993 and the Clove Development Deed which
conveyed the fee interest to the State of the Rights Parcel. Claimant's concern
is that 4.141 acres of his fee may have been appropriated to the extent that the
metes and bounds description in the Taking Map deviates numerically from the
measurements in the Clove Development Deed. (T-V1, p 99; Cl.'s Map brief, p 3;
Cl.'s Reply Map brief, p 3). More specifically, the mistake at issue relates to
the description of the boundary between claimant's Fee Parcel and the State's
fee (over which claimant had the rights at issue herein). Said boundary line is
described differently in the Taking Map as compared to the Clove Development
Deed in which the State acquired its fee interest as follows:
S 64° 16' W
a distance of about 3,500 feet to a
S 6° 28' E
a distance of 1,000 feet to a point in the center
of the Neversink River."
Clove Development Deed:
S 60° 30' W
a distance of about 3,500 feet to a point;
S 10° 15' E
a distance of 1,000 feet to a point in the center
of the Neversink River."
(Claimant's Appendix, Attachments A & B [emphases
The parties make a myriad of accusations and allegations relative to this
issue. The court has attempted to weed through these to reach the heart of the
issue. In examining the parties' respective briefs it is clear to the court
that both sides agree that title in these 4.141 acres was never appropriated by
the State and that title remains with claimant. As stated by claimant, "[e]ven
though the map lines and measurement descriptions reflected in the Taking Map
were different from the deed,
the written 'description' of what was taken was of the rights only
such that the Taking Map never took 4.141 acres of Mr. Wechsler's
...." (Cl.'s Reply Memorandum - Appropriation Map Mistake, p 4; emphasis
added). The State essentially agrees, attributing the facial difference between
the two documents to "[t]he mere conversion of bearings among equivalents in
magnetic north orientation, astronomic north orientation, and grid north
orientation does not constitute a 'mistake' in the description in either the
Marks sketch, the claimant's rights deed, the Clove Development to State deed,
or in the State's acquisition map." (St.'s Memorandum - Appropriation Map, p
13). Stated another way, the State argues that the descriptions are a
distinction without a difference. The State then concludes that "[n]either the
Marks sketch, the claimant's rights deed, the Clove Development to State deed,
or the State's acquisition map describe the conveyance of any fee interest."
.). In this court's view, although the parties may disagree on the
reasoning, they agree on the ultimate conclusion, namely the State did not
appropriate 4.141 acres of claimant's fee property with the Taking Map on
October 12, 1993. As such, the court finds that the State did not appropriate
4.141 acres of claimant's fee property on October 12, 1993.
That having been said, however, claimant requests the court direct the State to
file an amended map clarifying this issue, as well as move any monument markers
to comport with the true boundaries. The State protests this court's
jurisdiction to direct such equitable relief. Claimant argues that under the
unique circumstances of this case and in the context of its exclusive
jurisdiction over eminent domain cases involving the State, equitable relief is
proper when incidental to a claim for money damages. This court agrees.
MacKanin v State of New York
, 52 Misc 2d 144; Psaty v Duryea
NY 413). Accordingly, the court directs the State to file an amended map
illustrating and clarifying claimant's title in the 4.141 acres of the Fee
Parcel. Additionally, the State is directed to move the monument markers to the
extent necessary to reflect the proper boundaries of the State's taking herein.
CONCLUSION: SUMMARY OF FINDINGS
In sum, the court finds claimant entitled to the following direct damages for
the taking of the Rights Parcel in the amount of $316,562.50. Further, the
court finds that claimant is not entitled to consequential damages to the Fee
Parcel resulting from the taking of the Rights Parcel. The court does find,
however, that the State is liable for its abandonment of the appropriation of
1,067 acres of the Fee Parcel pursuant to EDPL 702 (B) and will schedule a
conference between the court and counsel on said issue. Finally, the State
shall file an amended map illustrating and clarifying claimant's title in the
4.141 acres of the Fee Parcel as described hereinabove and move any monument
markers to the extent necessary to reflect the proper boundaries of the State's
Accordingly, it is the finding of the court that claimant is entitled to an
award of $316,562.50 with statutory interest thereon from the vesting date of
October 12, 1993 to the date of this decision and thereafter to the date of
entry of judgment herein pursuant to CPLR 5001, 5002, EDPL 514, CCA 19 (1),
subject to CCA 19 (4).
The award to claimant herein is exclusive of the claim, if any, of persons
other than the owners of the appropriated property, their tenants, mortgages 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
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.
The court has reviewed the parties' proposed Findings of Fact and Conclusions
of Law and has incorporated into this decision those Findings of Fact and
Conclusions of Law it deems essential to this decision in compliance with CPLR
All motions not previously ruled upon are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
The State's appraisal uses the figure of
1,733.74 (rounded to 1,734) acres, while the conveyance indicates 1,800 acres.
(St.'s Appraisal, p 3). Claimant's appraisal relied upon the 1,800 acreage
figure (Cl.'s Appraisal, p 121). The court finds the 1,800 acreage to be
A brief history of the Rights Parcel - both
the easement and fee - will be helpful. In 1939, Philip Wechsler, claimant's
paternal grandfather acquired the exclusive hunting, fishing and trapping rights
on the Rights Parcel and also formed a wholly-owned family corporation named
Philwold Estates, Inc. (Philwold) into which the rights were transferred. From
1947 to 1968, Philwold entered into leases with various sports clubs permitting
hunting, fishing, and trapping for an annual charge. On December 30, 1968,
Philwold conveyed to claimant the exclusive hunting, fishing and trapping rights
on the Rights Parcel. With respect to the ownership of the Rights Parcel, the
title in fee was transferred to a local utility in 1923. Thereafter, in 1981,
the State acquired the fee ownership of the Rights Parcel using federal funds,
subject to claimant's exclusive hunting, fishing and trapping rights. On
February 3, 1988, the State initiated these proceedings to acquire claimant's
permanent easement for the exclusive hunting, fishing and trapping rights on the
Rights Parcel pursuant to the EDPL.
Claimant's appraisal uses acreage of 2,325 in
fee, while the State's appraisal uses acreage of 2,295. (Cl.'s Appraisal, p 82;
St.'s Appraisal, p 3). The court will use the figure of 2,325 acres.
Due to an apparent error in the acquisition
map, there is an issue of whether the State mistakenly appropriated 4.141 acres
on the Fee Parcel. (See discussion infra
, pp 24-27).
Additionally, as part of the foregoing, the
parties have also raised the issue of damages, if any, to claimant's residence
resulting from the taking, as well as the issue of an apparent mistake in the
appropriation map that may have appropriated 4.141 acres of the Fee Parcel in
The court has reformatted the text from said
Decision & Order for ease of reference.
With respect to the contiguity factor, the
fact that these parcels are separated by the Neversink River is not a reason in
and of itself to reject the unity of use theory. (Erly Realty
, 43 AD2d at 304). That having been said, however, the
difficulty of access from the Fee Parcel on the west of the Neversink River to
the majority of the Rights Parcel on the east is significant and will be
addressed below. (See infra
, pp 15). With respect to the third element,
unity of title, the State's expert conceded that claimant's differing property
interests - rights versus fee - does not prevent a finding of unity of use.
(Trial Transcript, Volume 4, p 303; see also
Nichols on Eminent Domain,
§ 14B.06, pp 14B-57 - 14B-60).
T-V2 means Trial Transcript, Volume 2.
One of these sales was actually from claimant
to his own expert in order to "establish comparables." (T-V1, p 140; St.'s Ex.
Claimant's appraiser also relies upon these
two offers for purposes of valuation, but the discussion here focuses on these
offers as proof of claimant's theory of highest and best use.
The State's objection at trial was
sustained regarding the admission into evidence of the deposition transcript of
John F. O'Connell, Lynmark's vice-president. (T-V1, pp 122-136).
Unreported decisions from the Court of
Claims are available via the Internet at
Additionally, the State argues that the
claimant's expert's appraisal violates 22 NYCRR § 206.21 in that it does
not separately state direct, consequential, and total damages. In other words,
"[n]owhere in Mr. Alpert's [sic
] report is there any analysis whatsoever
of what the 1,733.74 acres of hunting, fishing and trapping rights that were
directly appropriated were worth." (St.'s Post-Trial Brief, p 22). The court
agrees that claimant's appraisal relies on the value of "[t]he unappropriated
2,325 acre remainder in the before situation as enhanced by the rights, and in
the after situation, as not enhanced." (St.'s Post-Trial Brief, p 23). This
court finds that claimant's expert's failure to comply with 22 NYCRR §
206.21 is a separate and distinct basis for rejecting his appraisal.
Thus, for purposes of this decision, the
court need not review claimant's appraisal and the sales-comparison analysis
As such, the court will not review the
similar hunting and fishing leases included in the State's appraisal.
Parenthetically, it appears that the State's expert included the similar leases
as part of his analysis more as a narrative than for valuation purposes given
the existence of the actual leases. (T-V4, p 251).
The State's expert rounded off the combined
total of 8.06% to 8.00% resulting in a small benefit to the claimant.
The term "procedure" in this context
relates to steps taken to approve the taking of the property. (Goldstein and
Goldstein, Payment for Abandonment
, NYLJ, August 27, 1997, at 3, col