MILAZZO v. THE STATE OF NEW YORK, #2005-031-531, Claim No. 105336
MICHAEL V. MILAZZO
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
RENÉE FORGENSI MINARIK
MICHAEL G. WOLFGANG, ESQ.
HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
September 21, 2005
See also (multicaptioned
Claimant, Michael V. Milazzo, filed claim No. 105336 on December 12, 2001,
pursuant to Section 30 of the New York State Highway Law, claiming the State's
appropriation of his land damaged him both indirectly and directly. I held a
trial on this matter on April 6, 7 and May 3, 2005.
The subject parcel appears on appropriation maps filed in the Erie County
Clerk's Office on December 14, 1998 entitled "S.H. 88, Transit, Part I, Town of
Clarence, Erie County, Map No. 182, Parcel No. 197." The appropriation maps and
description contained therein are adopted by the Court and incorporated by
reference. The Defendant has complied with necessary procedures under New York
State Eminent Domain Procedure Law with regard to service. I have made the
required viewing of the premises. This claim has not been assigned or submitted
to any other court or tribunal for audit or determination.
The subject parcel was a portion of Claimant's property, commonly known as 6105
Transit Road, Clarence, New York. At the time of the taking, the parcel was
vacant. The amount of land taken is not in dispute. Approximately 10,346
square feet was taken in the nature of a 17 foot strip of land. The strip of
land runs parallel to Transit Road along the entire road frontage of the
property with a bump out to 23 feet at its northwest corner at Transit Road and
Woodbridge Lane (Exh. A, p. 69). The taking left approximately 176,526 square
feet remaining. The parties agree that the highest and best use for the
property, both before and after the taking, is for commercial development.
The New York State Department of Transportation ("DOT") used the appropriated
land to build part of a drainage system along that area of Transit Road.
Claimant alleges that DOT's drainage project has damaged his land beyond the
mere taking of the strip of land. Claimant asserts that the Defendant caused
him to spend money unnecessarily on the diversion of a
on his property. He also asserts that DOT's actions have caused more water to
flow to and through his property. The interplay between the New York State
Department of Environmental Conservation ("DEC"), the United States Corps of
Army Engineers ("ACE"), DOT, the towns of Clarence and Amherst, flood plains,
watersheds and a country club make this appropriation case an unusual study of
the nature of indirect or consequential damages.
Claimant personally purchased the subject property on February 10, 1989 from
his construction company, Milazzo V. Milazzo Builder, Inc. (Exh. 1, p. 26; Exh.
A, p. 30). The property was unimproved except for a sign identifying the
residential subdivision to the immediate east known as Woodbridge Village. The
shape of the property is that of an imperfect rectangle. The back lot line is
632.58 feet long and the property was approximately 300 feet deep (Exh. 1, p.
39). The terrain was predominately level with Transit Road except for the ditch
or creek which diagonally bisected the property.
It was originally encumbered by two permanent easements. The first was to the
County of Erie for drainage. It has the shape of a flag and sits in the
southwest corner of the parcel. The easement extends 153 feet along Transit
Road at a depth of 30 feet from the southwest corner of the property, then 50
feet more along Transit Road at a depth of 60 feet. The second permanent
easement was to the Erie County Sewer District, which is a 17 foot deep strip of
land along the parcel's full length of road frontage, approximately 612.21
This parcel was zoned "Major Arterial" and would have permitted the development
of five separate sites on the property. It is also partially located in a
designated 100 year flood plain, although the exact dimensions of that portion
of the land were not proven at trial (Exh. 1, p. 38).
The subject parcel was originally part of an approximately 29 acre land
purchase Claimant negotiated in the early 1980's. A homebuilder and developer,
Claimant has been in business over 35 years, according to his testimony at
trial. Claimant testified that the 29 acre land deal was in a Planned Unit
Residential Development District ("PURD") - the first of its kind in western New
York. The first 300 feet of the 29 acres, as measured from the Transit Road
right-of-way and then to the east, was designated for commercial development
while the remainder was residential.
Claimant stated there was an "irregular ditch" running through the 300 foot
commercial parcel and that it was dry in the summer but the location
substantially hindered his ability to develop the subject property. So, just
after Claimant purchased the parcel, he sought and received an opinion from the
DEC that the ditch was actually a Class "D" tributary for Gott Creek. Despite
the status of the creek, Claimant did not require a "Stream Disturbance Permit"
pursuant to Article 15, Title 5 of the NYS Environmental Conservation Law (Exh.
A, p. 122; Exh. 1, p. 157). In reliance upon this letter, Claimant hired an
engineer and made plans to relocate the creek around the south and east lot
lines of the property as depicted by an engineer's 2004 drawing meant to
replicate the early 1980's plan (Exh. 1, p. 40). It was actually the parcel to
the north of the subject property that was developed first, putting off the
creek relocation plans at that time.
Over ten years later, a confluence of two factors caused Claimant and his
agents to take another look at the subject property and the creek relocation: 1)
the emergence of a prospective purchaser (hereinafter "Huck"); and 2) the Town
of Clarence's concern that the realigned creek accommodate an increased volume
Defendant called Diane Kozlowski, the New York Chief of the Permit Evaluation
Section of the ACE. At the time the ACE first became involved with the subject
property, she was employed as a project manager in the ACE's regulatory branch
and, as such, was involved with environmental assessments. Claimant, by his
agent, Earth Dimensions, Inc., filed a Joint Application for Permit with the ACE
on June 25, 1999, proposing to relocate approximately 670 linear feet of a creek
channel (Exh. G). The ACE reviewed a detailed proposed project description with
drawings, held a public comment period, and then prepared an environmental
assessment that described the impact(s) of the proposed project (Exh. F). The
ACE determined that the subject creek was actually an unnamed tributary to Gott
Creek that flowed through an upland forest and supported a warm water fishery.
And, because the proposed relocation involved relocating more than 200 linear
feet, Section 404 of the Clean Water Act regulations required Claimant to apply
for and obtain an individual permit from ACE for the proposed project.
Claimant originally planned to relocate the creek along the southern and
eastern property lines, creating a right angled ditch and confining it within a
berm. While the various agencies that reviewed the plans did not have a problem
with Claimant relocating the creek, they did request plan modifications and
conditions (Exh. F, pp. 1 - 2).
There is no dispute that the tributary needed to be relocated to "economically
develop the site" (Exh. F, p. 2). However, the comments related to the original
plan with the right angled ditch centered primarily on the loss of habitat and
the potential for flooding. The compromise resulted in a meandering channel
along the southern and eastern property lines (Exh. H). The final plan provided
for a deeper and wider channel than the original plan. In addition, the
compromise included a vegetated shelf and low flow channel for wildlife and a
one foot berm to address flooding and storm water runoff issues (Exh. F, pp. 5 -
6). The ACE process acknowledged the concerns that the Town of Clarence had
regarding flooding in the adjacent Woodbridge subdivision, particularly the lots
abutting the subject parcel on the eastern boundary line and where the channel
intersected with Woodbridge Drive. I note the ACE made no determination one way
or the other regarding the validity of the Town of Clarence's flooding concerns.
Ms. Kozlowski testified that the one foot berm was voluntarily added by Claimant
at the Town's request; it was not an ACE permit condition.
Claimant put in proof regarding the projected cost to divert the creek in a
right angled channel, as well as the final costs for the actual creek diversion.
Claimant's position is that the State created the extra costs, that is, the
difference between the right angled version and the meandering version. I am
able to make a determination as to the following facts:
That the creek diversion was necessary for the economically feasible development
of the parcel.
That Claimant first became aware of the need to divert the creek in the
That the creek diversion did not actually occur until at or about the time of
That the DEC was notified of Claimant's intent to divert both in the 1980s and
when the Joint Application was filed by Claimant's agent in 1999.
That the DEC had no jurisdiction over the creek diversion although they did
apparently comment on the plan.
The one critical fact missing from proof at trial is evidence related to how
and where the State caused Claimant the alleged damage, that is the money over
and above the cost of the right angled ditch. If the assertion was that the DEC
should have informed Claimant when he contacted them in the 1980s that the ACE
might have jurisdiction and require a permit, that premise fails because it was
not even clear that the ACE would have had any jurisdiction back then. Further,
nothing in the proof, or nothing in the law that I can find, requires the DEC to
inform Claimant regarding the applicability of federal law. The fact that the
State DEC and the federal ACE work together now through a joint application
process, does not create any liability on behalf of the Defendant.
Another possible assertion could be that this condemnation and subsequent
improvements made by DOT to the Transit Road drainage system somehow caused
Claimant the problem. However, this assertion also falls flat in light of the
proof at trial in that the permit process was exclusively the jurisdiction of
the ACE, a federal agency. Further, the additional condition of the berm was a
negotiated point between the Town of Clarence and Claimant related to flooding
at Woodbridge Commons - - a residential development built by Claimant. Lastly,
Claimant's engineer testified that he contacted the ACE only after a DOT
representative told him that the ACE could be involved in the creek relocation.
I suppose it might have been cheaper to ask for forgiveness than for permission,
but I find no credible theory of liability that would make DOT's recommendation
I decline to award any consequential damages related to the creek diversion as
Claimant has failed to prove a causal connection between Defendant's acts and
In order for me to find that Claimant has been indirectly damaged by an
increased water flow across his property due to DOT's drainage improvement
project on Transit Road, Claimant would have to provide proof that the water
flow or water level in the watershed encompassing the subject parcel was
adversely affected by State action. I note, from the outset, that the subject
parcel appears to be partially located in a 100-year flood plain (Exh. 1, p 38
and Section D, p. 184). The portion of the parcel falling within the flood
plain was only described as being the "northwest quadrant;" exact dimensions
were not provided. The flood plain maps themselves are part of Exhibit 4.
While specific dimensions are not referenced on these maps either, it does
appear that about one-third of the parcel was in the flood plain on the April
1982 map. However, the next map, in March 1996, depicts a very different
circumstance. By 1996, almost all of the subject parcel lay in the flood plain
Jeffrey Laprowski, Senior Design Engineer for DOT, testified on a myriad of
issues related to the drainage improvement project, including a description of
the surrounding watershed before and after the appropriation.
Based on his testimony and Exhibits 4 and 6, I conclude the following:
The subject property was subject to flooding during high storm occurrences prior
to the appropriation.
The percentage of Claimant's property in the 100 year flood zone map increased
from 1982 to 1996.
The subject property was adjacent to a 290± acre watershed at the northeast
corner prior to the appropriation.
Gott Creek runs to the north of the subject property and the general water
drainage flow is from the south into Gott Creek in the north.
The water level in the watershed prior to the appropriation was dictated by the
water level of Gott Creek.
DOT's design for the Transit Road drainage project divided the original
290± acre watershed, creating two watersheds. The southern portion
comprised drainage area 1 and was 180 acres. The northern portion comprised
drainage area 2 and was 110 acres.
The post appropriation road work adjacent to the subject parcel was the
collection point for the water flow for drainage area 2.
Claimant relied upon the testimony of Mr. Laprowski regarding water flow and
water levels in the watershed area both before and after the appropriation. He
testified that the main cause of the flooding in the area was the inability of
the water in Gott Creek to flow freely under the Transit Road bridge. Prior to
the appropriation, the impeded water flow would cause a "back-up" in the
watershed. After the appropriation and as part of the construction performed by
DOT, the Transit Road bridge over Gott Creek was modified. DOT raised the road
elevation two feet and removed the support pillar in the center of the bridge.
In his opinion, this increased the flow of Gott Creek, thus lowering the water
DOT was certainly aware of flooding patterns that the Town of Clarence had
identified and that the Town of Clarence was concerned that the proposed
construction would exacerbate the problems. The Town requested that DOT divert
storm water flow from the west (Amherst) side of Transit Road, at the Transit
Valley Country Club, directly to Gott Creek instead of across Transit Road to
the culvert at the subject property (Exh. 4, letter from Latona to Russell,
08/13/98). At trial, Mr. Laprowski testified that DOT did study and review the
potential impact of the Town's request. The DOT concluded, however, that
diverting the water flow was not necessary because the new pipes, new culvert
and planned modification to the Transit Road Bridge over Gott Creek would
accommodate the water flow, thereby easing the flooding concerns.
Data related to water flow was provided in a "Hydrology Comparison" chart in
Exhibit 4. Claimant pointed out several times during the trial that DOT did not
take actual measurements of water levels in the watershed area. The trial
record is devoid of actual measurements of water levels, but projections, based
on the percentages of pervious and impervious land, and land contours and land
elevations within the watershed, were provided. The DOT construction project
did have an impact on the flooding conditions on the subject parcel, but the
impact was a positive one.
It is an undisputed fact that the level of Gott Creek controls the behavior of
the water flow through the watershed and thus, eventually, onto the subject
parcel. With the Transit Road bridge modification, the DOT lowered Gott Creek's
water level during a 10 year storm, a 50 year storm and a 100 year storm by 3
inches, 4 inches, and 6 inches, respectively (Exh. 4 - "RTE. 78/GOT CR.BIN
1030300 - English Unit," 3 pages). In addition, DOT plans for the drainage
improvement project created a situation that significantly increased the
efficiency of the water flow patterns by decreasing the amount of land in the
watershed immediately adjacent to the subject parcel and by increasing the
capacity of the pipes and culvert to hold a greater volume of water. The net
effect was that the water flowed faster and in greater volume through the
drainage system and back into Gott
I also note that the improved Class 4 tributary now holds a greater amount of
water than the previous ditch that bisected the subject parcel. In sum, the
subject parcel is in a 100 year flood plain and will, on occasion, experience
some flooding but those experiences will be less intense and less frequent. I
will not award any indirect damages for flooding as Claimant failed to show any
action by Defendant that has led to increased flooding on the subject
Value of Appropriated Land
There are three threshold issues to be dealt with immediately related to the
land value analysis and the adjustments in the sales comparison analysis. They
are: 1) the impact of pre-existing easements; 2) the "mixed zoning" on the
subject parcel; and 3) the existence of the diagonal stream channel.
The pre-existing easements belonging to the County of Erie and the Erie County
Sewer District have been more particularly described at page 3 of this decision.
Together, they comprise a total of .33 acres of the subject parcel's total
acreage. Defendant's appraiser separately valued the .33 acres and reduced that
value by 25% based on his analysis of selected prior sales that, admittedly,
were not an "exact match for the subject's situation" (Exh. A, pp. 64 - 65). I
decline to discount the pre-existing easements in such a manner. The value of
an easement's effect on the land would be reflected in the ultimate price of the
land itself. In addition, "[e]asements themselves are not usually valued"
separately (The Appraisal Institute,
The Appraisal of Real Estate, 12th ed.
, p. 86).
Defendant's appraiser correctly observed that a 33 foot strip of land at the
rear of the subject property is zoned PURD - Planned Unit Residential
Development. The 33 foot strip abuts the Woodbridge Subdivision. The remainder
of the subject parcel is zoned "Major Arterial," which is essentially commercial
(Exh. A, p. 34). Property zoned Major Arterial must have a minimum rear setback
of 25 feet. The subject parcel actually has a 50 foot setback that encompasses
the meandering stream channel (Exh. 1, p.85). Inasmuch as the required minimum
rear setback would subsume almost all of the 33 feet of PURD-zoned land, I find
that any adjustments on comparable sales or discounts of land value based on the
PURD zoning are not appropriate.
However, the existence of the stream bed that diagonally bisected the subject
property was an impediment to development of the site. As such, it was
appropriately used as an adjustment factor in the sales comparison
The Before Taking Analysis: Both appraisers relied upon the comparable sales
I have reviewed the appraisal and descriptions of the comparable sales. Based
on the appraisals and the testimony at trial, I find that sales numbered 1, 3, 4
and 6 in Exhibit A are the most comparable. All adjustments noted in the chart
in Exhibit A, p. 60 are reasonable and accepted except for the adjustment made
for zoning differences. Thus, the average per square foot value in the Before
Taking Analysis is $2.65.
The value of the
subject parcel before the appropriation is $495,210.00.
In addition, I note that certain site improvements existed prior to the taking,
specifically a subdivision sign for Woodbridge and landscaping. Claimant
provided proof of value for the sign only. Defendant appraised the sign and the
landscaping. I will allow Defendant's appraiser's value of $4,700.00 for all
The After Taking Analysis: Claimant's appraiser used the same comparable sales
in this part of the analysis as he did in the "before" situation, except that he
included two additional sales. The additional sales were actually the
subdivided subject parcel - the northern portion sold to Huck in August 2000 and
the remainder transferred in September 2003. The channel diversion work had
been completed by the time the property was transferred to Huck; this transfer
also took place after the appropriation. I do not see these sales as being
comparable to the subject parcel at the time of the appropriation, being too
remote in time of sale.
Defendant's appraiser relied upon the same comparable sales as in his before
taking analysis. Again, I find sales 1, 3, 4 and 6 in Exhibit A to be the most
comparable. All adjustments noted in the chart in Exhibit A, p. 73 are
reasonable and accepted except for the adjustment made for zoning differences.
The average per square foot value is $2.65. Thus, the value of the land after
the taking is $467,794.00.
Claimant has been directly damaged in the amount of $27,416.00 for his land and
$4,700.00 for the site improvements for a total amount of $32,116.00, plus
Thus, Claimant is awarded the sum of $ 32,116.00 with appropriate interest
thereon from the date of taking December 14, 1998 until June 14, 1999 (six
months subsequent to the date of taking), and from December 12, 2001 (the date
of filing of the claim) to the date of this decision and thereafter to the date
of entry of judgment herein, pursuant to CPLR 5001 and CPLR 5002; EDPL §
514; Court of Claims Act § 19(1); subject to Court of Claims Act § 19
The award herein is exclusive of the claims, if any, of persons other than the
owners of the appropriated property, its tenants, mortgagees and lienors having
any right or interest in any stream, lake, drainage, irrigation ditch or
channel, street, road, highway, or public or private right-of-way, or the bed
thereof, within the limits of the appropriated property or contiguous thereto,
and is exclusive also of the claims, if any, for the value of or damage to
easements and appurtenant facilities for the construction, operation, and
maintenance of publicly owned or public service electric, telephone, telegraph,
pipe, water, sewer, and railroad lines.
All other motions on which the Court may have previously reserved or which were
not previously determined, are hereby denied.
It is ordered that, to the extent Claimant has paid a filing fee, it may be
recoverable pursuant to Court of Claims Act § 11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
Rochester, New York
HON. RENÉE FORGENSI MINARIK
of the Court of Claims
Claimant referred to the Class 4 tributary to
Gott Creek as a ditch during his testimony.
Exhibit 4, the "Hydrology Comparison" chart
sets up the projected flows in before and after scenarios.
Defendant's appraiser nominally looked at the
cost approach but concluded it was more applicable to site improvements than the
vacant land (Exh. A, p.65).
I used a formula of 1 acre = 43,560 square
feet derived from the agreed upon fact that the subject parcel was 4.29 acres
and 186,872 square feet.