New York State Court of Claims

New York State Court of Claims

WECHSLER v. THE STATE OF NEW YORK, #2004-019-027, Claim No. 88857


Synopsis


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.

Case Information

UID:
2004-019-027
Claimant(s):
BENJAMIN I. WECHSLER
Claimant short name:
WECHSLER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
88857
Motion number(s):

Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
NIXON PEABODY, LLPBY: David L. Cook, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Michael Sims, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 29, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
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".[1]
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.[2]

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".[3]
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 hereinbelow.[4]
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 [4]). 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 beauty.


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[5] based on a theory of unity of use) as set forth in the second cause of action; and


(2) the State is liable for its abandonment of appropriation proceedings on Claimant's land located adjacent to the "Rights" property, pursuant to EDPL § 702(B).


(Wechsler, Ct Cl, filed June 6, 1995, Hanifin, J., Claim No. 88857, Motion No. M-50589, p 15).[6]


DISCUSSION
  1. Fair Compensation
Claimant is entitled to fair compensation for property appropriated by condemnation. (
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 [Mascioli], 49 NY2d at 360; Matter of County of Clinton [Gagnon], 204 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).
  1. Highest and Best Use
A.
Generally
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
near future [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).

B.
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 methodologies.


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.


C.
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 denied 34 NY2d 515).

The court will focus on the second element, unity of use, which is fact driven.[7]
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 unity?

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] - 250).[8]

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 York, 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;[9]
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 through 1993.

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 projects.


(i).
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
necessary 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[2], 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[2], 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).

(ii).
Offers to purchase
Claimant also relies upon two offers to purchase to corroborate his expert's conclusion relative to highest and best use.[10]
(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 officer.[11] 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).

(iii).
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, lv denied 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.

D.
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. 2003-010-032]).[12] 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 entirety.[13] 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 95 NY2d 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 valuation.
  1. Valuation
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 appraisal.[14]
(Ridgeway Assoc. v State of New York, 32 AD2d 851).
A.
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 26 NY2d 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 26 NY2d 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:

Total

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 Parcel.[15]


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 calculation:


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
500
$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 ÷ 1700).


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
Adjusted Rent
acreage
Big Bucks $ 5,000 380
Denton $ 7,200 400
Eden Falls $ 7,000
500
$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 = $1,000
($ 2,300)
$19,808
$19,808 ÷ 8% = $247,600 rounded off to $250,000

(St.'s 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. (
Ridgeway Assoc., 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 8.00%.[16]
(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, 33 AD2d 990 [no vacancy allowance due to long-term lease]; City of Niagara Falls v Zak, 40 AD2d 755 [property never vacant]; Sylviet Corp. v State of New York, 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
1,800 acres[17] @ $15.00 per acre = $27,000
[Vacancy Allowance omitted]
Effective Gross $27,000
Management 2 ½ % = $ 675
Insurance = $1,000 ( 1,675)
$25,325
$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.


B.
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.

  1. MISCELLANEOUS ISSUES
A.
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.


B.
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.

(Emphasis added).[18]

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, 925; Wechsler, 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.

C.
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:


!
Taking Map:


"[t]hence
S 64° 16' W a distance of about 3,500 feet to a point;
thence
S 6° 28' E a distance of 1,000 feet to a point in the center
of the Neversink River."


!
Clove Development Deed:

"[t]hence
S 60° 30' W a distance of about 3,500 feet to a point;
thence
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 added]).

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 fee...." (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." (Id.). 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, 306 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 taking herein.


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 4213 (b).


All motions not previously ruled upon are denied.


LET JUDGMENT BE ENTERED ACCORDINGLY.

November 29, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]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 appropriate.
[2]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.
[3]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.
[4]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).
[5]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 error.
[6]The court has reformatted the text from said Decision & Order for ease of reference.
[7]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 Development, 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[2], pp 14B-57 - 14B-60).
[8]T-V2 means Trial Transcript, Volume 2.
[9]One of these sales was actually from claimant to his own expert in order to "establish comparables." (T-V1, p 140; St.'s Ex. K).
[10]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.
[11]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).
[12]Unreported decisions from the Court of Claims are available via the Internet at
[13]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.
[14]Thus, for purposes of this decision, the court need not review claimant's appraisal and the sales-comparison analysis contained therein.
[15]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).
[16]The State's expert rounded off the combined total of 8.06% to 8.00% resulting in a small benefit to the claimant.
[17]See footnote 1.
[18]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 1).