New York State Court of Claims

New York State Court of Claims

CARBONE v. THE STATE OF NEW YORK, #2006-010-015, Claim No. 107364


Claimant awarded $172,500 for appropriation of property.

Case Information

Claimant short name:
Footnote (claimant name) :
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
By: Mark R. Knuckles, Esq.Kenneth J. Flickinger, Esq.
Defendant’s attorney:
Attorney General for the State of New York
By: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for damages for the appropriation of claimant’s property pursuant to § 30 of the Highway Law and the Eminent Domain Law. The subject property, located in the Town of Carmel in Putnam County, was appropriated in proceedings entitled Putnam County Bikeway II, Mahopac-Brewster, PIN 8755.80.221 Putnam County, Map No. 6, Parcel Nos. 10 & 11 (Ex. 1). The parties agree that the date of the taking was February 23, 2000. The personal service date was March 17, 2000. The claim was filed with the Clerk of the Court on February 20, 2003 and it has not been assigned to any other court or tribunal for audit or determination. The Court has made the required viewing of the property pursuant to Court of Claims Act § 12(4) and has confirmed ownership by claimant. The subject property, which was a former railroad right-of-way, comprises four tax lots divided into two long, narrow parcels totaling 10.48 acres of vacant land. Three of the tax lots are contiguous (65.18-1-63, 65.18-1-64, 65.19-1-24) and the fourth is not (65.19-1-28).
The Court adopts the appropriation maps and descriptions contained therein and incorporates them by reference.
Claimant testified that he purchased the property in 1993 for $325,000. He intended to build a house for his own use and then later sell it. He described himself as a contractor who has “dabbled”
in land development. Claimant maintains that, before he bought the property, he spoke to an engineer from the Town Board of Health who performed test borings to evaluate the land for septic systems. A few months after purchasing the property claimant was informed by the State that the property would be subject to eminent domain proceedings. He continued to make tax and mortgage payments but, never took any further steps toward development. According to claimant, after the taking, a bike path was constructed, drainage culverts were added and the old railroad right-of-way was moved.
Michael Calise, a professional civil engineer, testified on behalf of claimant. His report filed in the Office of the Clerk of the Court of Claims consisted of a five-page “conceptual subdivision” (Ex. 1). As noted on page one of the drawing filed:



Calise’s rendering was received into evidence over defendant’s objection (Ex. 1).
Calise’s testimony was restricted to those items specifically included in his rendering (Court of Claims Rule, § 206.21[c]).
Calise’s drawing plotted six building sites, five of which would each be developed with a single family home and the sixth site would be developed with a 16 unit townhouse complex. The boundary lines were schematic and not measured. He used the tax maps, rather than a survey, to denote the wetlands and stream and conceded that his rendering was a general concept not suitable for submission to a planning board. He relied upon claimant for the bulk information and did not do any independent research. In the absence of a detailed report, there was no explanation of the zoning restrictions and the likelihood of securing variances. Likewise, there was no explanation for the septic requirements for the houses. There were no cost estimates for water and waste systems, excavation, or access roads. Calise conceded that an engineer would need an accurate survey of the property and wetlands to assess the feasibility of the project. Calise’s rendering, while received into evidence, was of limited value and the Court accorded it little weight.
The deficiencies of Calise’s renderings were compounded by claimant’s appraiser, Harry Eisenberg,
who relied upon Calise’s conceptual scheme assuming the feasibility of Calise’s development concept without modification. Thus, Eisenberg valued the property by adding together the projected market value of each site. He valued each single family building site at approximately $195,000 (Ex. 2, Conclusion of Value). Defendant moved to strike the appraisal and objected to Eisenberg testifying. The Court, however, received the appraisal into evidence (Ex. 2) over defendant’s objection and, upon further consideration, has accorded it little weight.
Eisenberg assumed whatever variances were needed would be granted. He also assumed a septic plan would be approved although he was not aware of the wetlands and no septic plan was shown. He never described the variances, but just adopted Calise’s plan for five single family houses and offered, as comparables, three sales of vacant land zoned for one family houses. Eisenberg’s appraisal was flawed in that it used February 23, 2001 as the valuation date rather than the correct date of February 23, 2000, one year earlier. Additionally, Eisenberg’s comparables did not include all of the information required in an appropriations proceeding (Court of Claims Act § 16). Rather, Eisenberg used only the Multiple Listing Sheets for a description of the properties; thus the appraisal contained only the name of the grantor and did not list the grantee or the Liber and Page. In addition to the inherent problems of building upon Calise’s faulty analysis, the multiple listing sheet for Comparable Number One showed a sales price of $180,000 for three acres of property “Presently Being Subdivided into Two 1.5 Acre Lots. Prop. is Being Sold Subject to the Subdivision” (Ex. 2). Contrary to Eisenberg’s conclusion that the $180,000 was the price for each 1.5 acre parcel, that assumption is not at all clear from the listing.
In valuing the parcel for the 16 townhouses, Eisenberg felt “it is reasonable to assume that sewers will be made available to the $25 million sewage treatment plant nearby the proposed development” (Ex. 2). There is, however, no basis for this assumption set forth in the appraisal. Again, Eisenberg relied upon Calise who did not show the sewage hookup. Eisenberg conceded that the sewer hookup was crucial to the scheme, yet there was nothing in his report to assess the reasonableness of his assumption of the rules and regulations for the hookup.
Again, Eisenberg just assumed in his analysis that the Town Board would amend its zoning for townhouses and he merely estimated a $450,000 per unit sales price for the townhouses based on his “opinion of the marketplace.” There were no comparables offered for the townhouses. Eisenberg used a “Development Analysis” on an estimated square foot basis. He neglected to particularize site preparation and drainage costs. He did not consider the source of the water supply. Rather, he summarily stated, “The engineer gave me the layout, I assumed he did some work.” Eisenberg also estimated it would take one year to build the townhouses without knowing how long it would take to get zoning approval.
Eisenberg concluded the land value for each of the 16 townhouses would be $100,000 per unit for a final land value of $1.6 million. The Court finds Eisenberg’s conclusions to be highly speculative and has accorded them no weight.
Tim Miller, who has a Bachelors Degree in Environmental Resource Management and is a member of the American Institute of Certified Planners, testified on behalf of defendant. After considering the property in light of the zoning requirements, the wetlands and the railroad bed, he concluded that all four tax lots were unsuitable for development. Miller testified that the parcels were long and narrow and none of the proposed houses could satisfy the dimensional requirements set forth in the Town of Carmel ordinances for frontage, width and depth. Lot frontage is not met on three of the four lots and, in short, none of the lots are in conformity with the zoning code.
Miller also considered the New York State Department of Transportation maps that show wetlands which would be regulated by the New York State Department of Environmental Conservation, the United States Army Corps of Engineers and the Town of Carmel. In Miller’s opinion, it would be difficult to procure a variance for a septic system near the wetlands. Putnam County is within the New York City Watershed. A memorandum of understanding between New York City and the Army Corps of Engineers has resulted in a long process for individual permit approvals. Additionally, the compressed soil of the old railroad bed would contribute to the difficulty of creating a septic system and existing nonconforming side slopes would need substantial amounts of artificial fill.
Miller concluded that Calise’s proposed development would not be approved. Based on Miller’s experience at planning boards, he opined that initially variances would be a huge problem. Then, even if variances were obtained, the lots would still need the approval of the Putnam County Department of Health which does not approve septics in questionable areas where there are wetlands and a high water table. After evaluating the wetlands, the railroad bed and the irregular shape of the property, Miller concluded that developments on the property were not feasible.
Michael Bernholz, a licensed real estate appraiser, prepared an appraisal and testified on behalf of defendant (Ex. A). The appraisal contained his thought processes and calculations supporting his figures. On the basis of a physical inspection of the property, the Miller report, topographical maps and the tax map, Bernholz concluded that the highest and best use of one parcel, tax lot 63, could possibly be for a single building lot. The highest and best use of the other three lots (one of which was landlocked) would be excess land which is usually bought by adjacent property owners. Although any house constructed on lot 63 could not meet the zoning requirements, Bernholz reasoned that the property lent itself to getting a variance and septic permit. Accordingly, Bernholz appraised that one lot as suitable for a single family house. In contrast, he determined that the other three lots were not capable of development. To assess a value for these three lots, he found three land sales in Carmel with “challenged” property. In each situation, the topography restricted building and the properties were bought by surrounding property owners.
Using the land sales and attributing a weighted average based on the adjustments, he established a per square foot value and then multiplied that amount by the square footage of the subject property and found the market value for the lots to be (Lot 64) $20,000; (Lot 24) $34,000; and (Lot 28) $23,500.
Based primarily on his own inspection of the property, Bernholz concluded there was a “glimmer of a chance” that a house could be built on Lot 63. In his view, it would be shielded from its neighbor piece which could mitigate some of the arguments which might be raised by opponents to a variance. To find the market value of Lot 63, Bernholz used three comparables in Carmel of vacant lots where houses could be built. The three sales were all close in price ($94,905, $96,425, $92,506) and, using a weighted average, Bernholz concluded that tax lot 63 was worth $95,000.
Bernholz concluded that the market value in the acquisition (map 6, parcel 10), was $149,000 (Lot 63, $95,000; Lot 64, $20,000; Lot 24, $34,000) and the market value in the acquisition (map 6, parcel 11) was (Lot 28) $23,500 for a total of $172,500.
Claimant is entitled to just compensation for the taking of his property (New York State Constitution, Article I, ¶ 7). Generally, just compensation is determined by the fair market value at the time of the taking based upon the highest and best use of the property, even if the property is not being utilized to its fullest potential at the time of the taking (see Matter of Town of Islip (Mascioli), 49 NY2d 354).
“A party asserting a highest and best use different from the existing one must establish that it is reasonably probable that the asserted highest and best use could or would have been made of the subject property in the near future (Matter of Rochester Urban Renewal Agency v Lee, 83 AD2d 770; see Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535, 536).”

(Thompson v Erie County Indus. Dev. Agency, 251 AD2d 1026, 1027).
“It is well settled that 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’ (Matter of City of New York [Shorefront High School – Rudnick], 25 NY2d 146, 149).”

(West Seneca Cent. School Dist. v State of New York, 60 AD2d 760).
Upon consideration of all the evidence, including evaluating the testimony of conflicting opinions presented by each party, the Court finds the testimony presented by defendant’s experts to be more persuasive than that which was presented by claimant (West Seneca Cent. School Dist. v State of New York, supra; Auger v State of New York, 263 AD2d 929).
In accordance with all of the above, the Court finds that claimant is entitled to an award of $172,500 with appropriate interest from February 23, 2000 (the date of the taking) to September 17, 2000 (six months subsequent to the date of service of the Notice of Appropriation upon claimant) and from February 20, 2003 (the date of the filing of the claim) to the date of this decision (see Court of Claims Act §19[1]) and thereafter to the date of entry of judgment herein (pursuant to CPLR 5001 and 5002). It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
The award to claimant herein is exclusive of the claims, if any , of persons, other than the owners of the appropriated property, tenants, mortgagees, and lienors having any right or interest in any stream, lake, drainage, and irrigation ditch or channel, street, road, highway, or public or private right-of-way or the bed thereof within the limits of the appropriated property or contiguous thereto; and is exclusive also of claims, if any, for the value of or damage to easements and appurtenant facilities for the construction, operation, and maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer, and railroad lines.
All motions not previously ruled upon are DENIED.

June 26, 2006
White Plains, New York

Judge of the Court of Claims

[1]. For purposes of this Decision, the lots will be referred to by the last two digits in each tax lot.
[2]. All quotations are to the trial notes or audiotapes unless otherwise indicated.
[3]. As defendant points out, the graphic scale on page one was shown as one inch equals 100 feet, rather than the 50 feet it should have been. While the graphic scale was incorrect, listed measurements were obviously calculated at a scale of one inch to 50 feet.
[4]. Eisenberg’s Appraisal Qualifications (Ex. 2) suggested that he is a certified appraiser in New York State; however during the voir dire, it was established that he was not certified in this State. While it is not necessary to be certified to perform appraisals, his qualifications as drafted were misleading.