New York State Court of Claims

New York State Court of Claims

KUPIEC v. STATE OF NEW YORK, #2006-018-520, Claim No. 105669


Synopsis


The Court awards Claimant $204,600, with interest, as direct damages in this appropriation.

Case Information

UID:
2006-018-520
Claimant(s):
CHARLES E. KUPIEC
Claimant short name:
KUPIEC
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105669
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
COHEN & COHEN, LLPBy: Daniel S. Cohen, Esquire
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Martin Rowley, Esquire Senior Attorney
Third-party defendant’s attorney:

Signature date:
July 5, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is a timely filed claim for the partial appropriation by the State of an unimproved parcel of property owned by Claimant pursuant to § 30 of the Highway Law and Eminent Domain Procedure Law. The claim was filed on February 28, 2002, and served upon the Attorney General on February 27, 2002. The property is located in the Town of New Hartford, County of Oneida.
The State made separate appropriations of Claimant’s property by the filing of maps in the Oneida County Clerk’s Office. The first appropriation occurred on November 2, 1999, in a map and description entitled “Stanwix - Utica Part I, Map No. 59, Parcel Nos. 69 and 84, County of Oneida, Town of New Hartford, Charles E. Kupiec, Reputed Owner.” This taking consisted of 5.546± acres without access. On August 21, 2001, the State also appropriated 0.032± acres, without access, by a map and description entitled “Stanwix-Utica, Part I, Map No. 140, Parcel No. 212, County of Oneida, Town of New Hartford, Charles E. Kupiec, Reputed Owner.” The total taking was 5.578± acres. The Court adopts as accurate and incorporates by reference the description of the appropriated property as shown on the maps and descriptions filed in the Oneida County Clerk’s Office, copies of which are annexed to the claim. The parties are in agreement that for valuation purposes, the date of the taking was November 2, 1999.
[1]
This claim has not been assigned or submitted to any other Court, tribunal, or officer for audit or determination.
The taking occurred as a result of the Department of Transportation (DOT) widening Commercial Drive and constructing the Judd Road Extension to accommodate the heavy traffic caused by the development of a number of commercial establishments on Commercial Drive. The Court has viewed the property.
Claimant testified that he acquired the property by separate conveyances.
[2]
On September 26, 1989, Claimant acquired a one-half interest in the property from Peter Cappelli, 362-4 North Genesee Street Partnership, a Guzzardo Group (Exhibit 1-A). On May 9, 1990, Peter Cappelli transferred his one-half interest in the property to Claimant (Exhibit 1-B). Excepted from the property conveyed to Claimant by these deeds is a parcel from Henry Cappelli to Dresher Furniture on September 27, 1972.
[3]

Before the taking, Claimant’s property was an irregularly shaped lot consisting of 7.40 acres. The property was a corner parcel bounded on the north by Clinton Street and on the west side by Commercial Drive. A 20' wide sewer easement divided the property and there was a 16' paved right-of-way in the northwest corner which provided access to a water bottling company’s buildings on the adjacent property owned by Thompson. This was the only ingress and egress to the company, Risely Springs, and the owner’s home. At the time of the taking, Claimant testified that those buildings were no longer in existence and the driveway was no longer being used.
[4]

The property also contained 3.84± acres of federally protected wetlands and was bisected by Mud Creek which created a flood plain. Both of these factors restricted the use of the property under the Town of New Hartford zoning ordinance which defines developable land as, “[l]and with slopes less than 15 percent without wetlands or unusual or unique features or subsoil conditions and outside of designated floodplains.”
[5]
The property is zoned as B-2 General Business with the permissible uses and bulk regulations as in the RB-1 Retail Business District. There are coverage and setback requirements and a maximum impermeable surface coverage of 50%. This zoning classification allows commercial development.
At the time of purchase, Claimant knew there were wetlands on the property but he was unaware that there was a flood plain as well. Claimant purchased the property with the intent to build a larger building for his own business but found he did not need it. After Claimant realized he did not need a new building, he was willing to sell the property.
A local realtor, Joseph Carucci, was working with Claimant to assist in a sale of the property prior to the appropriation. In August 1997, a purchase agreement was signed by Claimant, as seller, and Carnegie Management and Development Corp., as purchaser, for a price of $850,000.00.
[6]
It was anticipated that a Barnes and Noble Bookstore would be built on the site. The Claimant was unaware of the potential appropriation at the time the agreement was signed. As stated in the recital clause of the contract, it was believed by the parties at that time that the property was not less than 7.803 acres. In reality, however, the property was only 7.4 acres. Whether or not the acreage difference would have voided the agreement is unknown. It was clear that Carnegie needed 5 acres for the project. According to Mr. Carucci, when the potential appropriation became known definitive commitment on the extent of the work was sought from the State but never received. This sale was never consummated. After the State’s taking, there were no longer the 5 acres Carnegie needed to develop its plans. The Court did not rely on this purchase agreement to determine the pre-taking value of the property, because, in addition to the incorrect acreage in the recital clause, there were several contingencies in the purchase agreement, making consummation of the sale too speculative to consider. After the appropriation, Claimant entered into another agreement
[7]
with Benderson Property Development, Inc., for the sale of approximately 2.25 acres at a price of $400,000. This sale was part of an assemblage which never materialized and, therefore it too, was not completed. The Court also did not find this purchase agreement reliable to assess the value of the property. The construction project which led to this appropriation eliminated Clinton Street and with the construction of a median, the property was now only accessible from Commercial Drive as a “right in”and “right out” ingress and egress. The failed assemblage had included the acquisition of another adjoining property, known as the Dresher property, which would have resolved the access limitation. It is unclear what affect, if any, this had on the contract price.
Donald Ehre, a professional engineer, testified for Claimant. He was asked to review Claimant’s property and generate development possibilities for the property before and after the taking. Mr. Ehre’s development theories are included with the appraisal prepared by Robert E. Galliher.
[8]
At trial, Mr. Ehre described the parcel, including the wetlands, flood plain, and flood way.
[9]
Mr. Ehre also discussed the zoning requirements of the Town of New Hartford.
Mr. Ehre described a flood plain as the expected area that would be inundated if a storm of 100-year frequency occurred; the town zoning ordinance prohibits development in this area. The flood way fringe, the outer limits of the flood way, where flood waters should not rise above 1 foot, could be developed. According to Mr. Ehre, this area of the property would need to be backfilled above the flooding elevation and for residential property no basements are permitted. The town requires a permit for development of the flood way fringe. In his opinion, this permit would most likely be granted.
The physical encumbrances on the property (the wetlands, flood plain, flood way, easement and right-of-way) reduced the available development area. Mr. Ehre noted the setback requirements and uses available under the local zoning ordinance, which he also had to consider, to determine what could be built on the property.
Mr. Ehre, Claimant’s appraiser, and an environmental engineer, Bernard Carr, worked together to decide what use of the property was feasible. These experts determined as part of a potential development scheme, that prior to the taking, a two-story building of 59,000 square feet with 197 parking spaces could have been placed on the property. Two extraordinary costs would be involved in developing this land in accordance with the zoning ordinance: the cost of replacing the wetlands and building a bridge over Mud Creek. To move the wetland to a different part of the property, according to Mr. Ehre, would cost $30,000. The cost to construct the necessary bridge and culvert over Mud Creek to provide some of the proposed parking was also $30,000. Mr. Carr assisted in calculating the cost involved in moving the wetland and constructing the bridge and culvert, at trial he testified that the cost of relocating the wetland was actually $59,000. There was a portion of the property on the southern end that appeared to be usable as a wetland replacement area. Without the wetland replacement, the amount of land available for development would have been smaller. The town zoning ordinance requires green space equal to the impermeable areas (buildings, parking lots, etc.). Thus, for one acre of building or paved area, another acre must be vegetative. This impacts the size of any permissible building both before and after the taking. Before the taking, without the wetland being moved, 2.99 acres could be developed that is made impermeable; with the wetland replacement there was 3.37 acres available as impermeable space. However, in practicality, Mr. Ehre opined that because of the irregular property shape, the total acreage actually feasible for development even with some wetland replacement (.38 acres) was 2.33 acres. A total of 4.66 acres would be needed to ensure a sufficient amount of zoned green space.
The proposed development scheme attached to Claimant’s appraisal report,
1[0]
prepared by Mr. Ehre, was based upon the property consisting of 7.88 acres, but he acknowledged, upon cross-examination, that he later learned the parcel size was slightly smaller. Mr. Ehre did not feel this change would alter the sketches of the potential buildings proposed because the drawings were preliminary and not drawn to scale. These plans were merely conceptual. More detail would be necessary to obtain town planning board approval. Additionally, since the sketches were drawn on the taking map, the correct acreage was used. Claimant has never applied to the Town of New Hartford for any development permits or variances nor has he filed any site plans.
The proposed development scheme, advanced by Claimant’s experts, utilized the area within the flood plain also encumbered by a portion of the sewer easement. The proposed development for a portion of the proposed parking area was on the sewer easement. Although the town could reject an application to build over its sewer easement, it has not, to Mr. Ehre’s knowledge, ever done so. Mr. Ehre acknowledged that the proposed sketch did not include the required loading docks or possibly the necessary handicapped parking spaces.
Bernard Carr, an environmental engineer, delineated the wetland on the property and arrived at a possible relocation of the wetland. He testified that about 25,000 square feet of wetland could be displaced based on statutory requirements. Mr. Ehre later modified this to 17,000 square feet. The DEC and Army Corps of Engineers would require wetland replacement two times the size of the wetland area displaced. The southern portion of the property was the main area that could be used to replace the required amount of wetland and the cost to do this was estimated at $59,000.00.
1[1]

Most of the replacement area for the wetland was west of Mud Creek. On cross-examination, Mr. Carr agreed that to create the wetland in this area, access would be necessary from an adjacent property. The replacement would require large machinery to dig out material to a depth of three feet. There was no evidence that the adjacent property owner would be amenable to providing access for such a project.
Mr. Ehre also crafted, post-taking, proposed development for the property as part of his proposal (Exhibit 18). Post-taking, the property, based upon Claimant’s appraisal, had 1.823 acres which could be developed. The post-taking property is encumbered by only a portion of the sewer easement and falls within only part of the flood way fringe. Mr. Ehre testified that development of the flood way fringe could occur with only a permit, and no significant site preparation would be necessary. The proposed buildings, post-taking, would be significantly smaller, a one-story, 10,000 square feet building in Option B-1 with 17 parking spaces, and a two-story office building in Option B-2 with 22,000 square feet and 73 parking spaces (Exhibit 18). Again, these sketches were not drawn to scale and did not contain necessary loading docks. It was unclear whether handicapped parking was included.
The Claimant’s appraiser, Robert Galliher, testified about the process he followed to reach his determination of the market value of the property before and after the taking. As part of his analysis, he engaged other professionals, including Mr. Ehre and Mr. Carr, to assist him in reaching his conclusions. Pre-taking, Mr. Galliher reiterated that 4.66 acres of the property was physically developable, that is, 2.33 acres could be impermeable and 2.33 acres green space. Mr. Galliher found the only suitable approach in deciding the land value was the sales comparison approach and that is what he used. He determined the highest and best use was commercial development, either office or retail space. He reached this conclusion by noting that the neighboring use is a mix of retail and office space and that these uses were permitted by zoning.
Mr. Galliher used the same four sales in both the before and after valuations. In the before valuation, he used one additional sale, L-5. In the before valuation, he valued 4.66 acres as developable land
1[2]
and the additional 2.741 acres as excess and undevelopable. The 4.66 acres he valued at $177,000 per acre. The remaining land, the 2.741 acres, was valued as wetland or wetland replacement. Mr. Galliher relied upon comparable sale No. 5, to assess the value of this portion of the property. Sale L-5 was a wetland parcel across the street from the subject property, transferred in February 1998 between the Inkawich family and Benderson Development. This parcel has 21.52 acres of both developable and non-developable property and sold for $90,000 per acre. Mr. Galliher attributed $40,000 per acre to the value of the subject wetlands. The total before value of Claimant’s property was $934,400. The cost of developing the wetlands and constructing the bridge and culvert ($59,000 + $30,000 = $89,000) was then deducted from the total value, to arrive at $845,400.
1[3]

In the after valuation, the subject parcel was reduced in size from 7.401 to 1.823 acres. Mr. Galliher used the same comparable sales (L-1 through L-4) and arrived at the same value of $177,000 per acre for all of the remaining 1.823 acres. Mr. Ehre and Mr. Carr’s conceptual drawings and calculations contained in the appraisal aided Mr. Galliher in valuing the property, only in the sense that they were used to find what was physically possible in determining the highest and best use. Mr. Galliher said his determination of value did not depend on the potential building size. It was dependent upon being able to actually improve the property. The flood plain, wetlands, and shape of property were also considered by the witness in determining the value as these factors affect its development potential. All of the damages determined by Claimant’s appraiser are direct.
On cross-examination, Mr. Galliher acknowledged that his pre-taking valuation was based on the assumption that all of the necessary approvals could be obtained to develop a portion of the wetland area. All of the comparable sales he used had been improved by various types of development. Mr. Galliher made no adjustments for time of sales. In the before comparison, there is an adjustment for size using the 4.66 acres as the size of the subject property. In the after situation, he removed the size adjustment for sales 1, 3, and 4 but did not change the adjustment for sale 2. His sale 5, the wetland parcel, was originally part of an assemblage. This sale took 10 years to consummate, and he said it could be considered either an assemblage or separate sale.
The State called Allen J. Cowen, a professional engineer, who was retained by DOT to review reports and develop maps showing the subject parcel. Mr. Cowen completed a written report with his findings and opinions.
1[4]
Mr. Cowen determined what, in his opinion, was the developable area of the property before the appropriation. The maps, (exhibits MB, MC and MD attached to his report, Trial Exhibit H) depicted property lines and other constraints on the property. The flood plains and boundaries were included. The map, labeled Exhibit MB attached to his report, shows the flood plain. The orange area represents the flood way boundary. The yellow is the 100-year flood fringe and the green is the 500-year flood fringe. The yellow and green areas are referred to as the flood plain. The green line is the federal wetland boundary.
The witness calculated an overall acreage of 7.4 acres and reduced it by the area of the flood way and wetland. The southern area, he deemed unusable because it was inaccessible. In his opinion, about 2.99 acres could be developed before the taking. He noted that some of this area is in the flood way fringe, but he believed the Town of New Hartford would allow some development in the flood fringe area. Without that allowance, the developable area would be 1.78 acres.
Mr. Cowen also mapped the neighboring property, owned by Inkawich and sold to Benderson Development, which Mr. Galliher relied upon to value the 2.741 acres he opined could be used for wetland redevelopment or mitigation. Mr. Cowen attached that map to his report as Exhibit MD. Mr. Cowen opined in his report that the Inkawich parcel had more value because a portion of it had already been used for retail development.
Exhibit MC, attached to Cowen’s report, shows the subject property after the taking with the conceptual building and parking lot layout proposed by Mr. Ehre as option B-2. Mr. Cowen agreed that the proposal met the zoning requirements and that parking lots could be built in the 100-year flood plain area.
The State’s appraiser, Richard Stropp, also testified. His appraisal was received into evidence.
1[5]
Before the appropriation, in November 1998, Mr. Stropp appraised the adjacent Risely Springs property and was familiar with the Claimant’s property.
After describing the property and identifying various maps in his report, Mr. Stropp went on to say that he valued the pre-taking property by dividing it into three categories. He found 1.712 acres were developable as one category, the next area of 1.278 acres is land that is not, by definition, developable but may be used for density requirements and green space, and the remaining 4.41 acres are wetlands and inaccessible and, therefore, have a nominal value.
Like Mr. Galliher, Mr. Stropp found the highest and best use to be commercial development. He determined a square foot value for the developable land based upon four comparable sales which he used for both his before and after appropriation valuation. Mr. Stropp’s sale, L-1, L-2 and L-3 were the same comparables used by Mr. Galliher as Sale L-3, L-1 and L-4 respectively. Only Mr. Stropp’s L-4 was not used by Mr. Galliher. Mr. Stropp arrived at a before value of $560,000 for the total property based upon $7.50
1[6]
per square foot ($326,700 per acre)
1[7]
which was allocated $5.90 per square feet or $257,000 per acre to the 1.712± acres of developable area (74,575 square feet X $5.90[R]); $1.50 per square feet or $65,340 per acre to the 1.278 acres of developable area (55,670 square feet X $1.50 [R]); and $0.20 per square feet or $8,712 per acre for the wetland and inaccessible 4.410 acres (192,100 square feet X $.20 [R]).
Mr. Stropp also did a “paired sale” analysis
1[8]
to determine how wetlands were valued using sales A-1 and A-2 as described in Appendix C of his report. He used two sales from a different county and town from the subject which involved one parcel with wetlands and one without. Both properties were developed into businesses. By comparing these, Mr. Stropp concluded that if the wetlands are not needed then they are not worth much to a purchaser.
After the taking, Mr. Stropp valued the post-taking remaining property at $390,000, $5.50 per square foot ($239,580 per acre), which he allocated $383,000 or $5.30 per square feet ($230,868 per acre) to the 1.667 acres of developable land and $7,000 or $1.10 per square foot to the 0.155 acres ($47,916 per acre) remaining in the flood way fringe. There were no wetlands remaining and the access to Clinton Street had been eliminated. Mr. Stropp did another “paired sale” analysis to determine indirect damages for the loss of access. He compared sale L-6 which had limited access by easement with sales L-1 and L-2 which had road access and quantified the difference as a minus 18% and 20% access adjustment. He then compared Sale L-7 that had access on two roads to sales L-1 and L-2 which he also quantified to a minus 18% and 20% difference. Mr. Stropp then adjusted the comparables based upon the exposure and road frontage of each by 20% ±. The damage to the subject property based on a 20% access adjustment he calculated to be $45,000. Mr. Stropp found the total damages attributable to the appropriation amounted to $170,000, of which he assessed $125,000 to direct damages and $45,000 to indirect damages.
Another sale was consummated after Mr. Stropp’s appraisal had been completed. He added this information in his testimony with Trial Exhibit F. In that sale, the buyer, Bremmer, was seeking property for his liquor store and additional land for green space density requirements to permit the construction of additional parking. Dresher purchased a parcel owned by Thompson for $30,000 in order to sell it to Bremmer with a parcel already owned by Drescher as one piece of property. The Thompson property sold for $1.12 per square foot of land. This sale, according to Stropp, substantiates his value of $1.50 per square foot for his second category of land used for density requirements.
Both parties agreed and the Court finds that the highest and best use of the property before and after the taking is commercial development. The Court adopts the State’s land descriptions as set forth in its appraisal.
1[9]
The Court finds that before the taking the property consisted of 7.4± acres.
Based upon the Town of New Hartford’s zoning ordinance definition of developable land, the contingent board approval necessary to develop a portion of the flood plain, and the cost, access limitations and arduous effort necessary for wetland replacement, the Court finds that 1.712 acres are the developable portion of pre-taking property. However, to make maximum developable use of this portion of the property another 1.712 acres are necessary for required zoned green space. There are no restrictions on the type of land that can be utilized to fulfill the green space requirements, wetlands, flood plains, would be suitable. Thus, the Court finds that another 1.712 acres would be usable to meet the necessary density requirements for the developable portion. Yet, the Court agrees with Mr. Stropp that the land used for green space would not be as valuable as the land utilized for actual building and improvements. The balance of the property, 3.976 acres is surplus and accordingly less valuable than the previous two land categories.
After the appropriation, based upon a thorough review of the appraisals and documents the State appropriated 5.578 acres of Claimant’s property leaving 1.822 acres. The appropriated property remaining, although significantly reduced in size, is the most accessible and the most developable portion of Claimant’s holdings, which makes it the most valuable as well. The State appropriated mostly wetlands, flood ways, inaccessible areas, or areas with other encumbrances. The Court finds that after the taking 1.667± acres based upon the zoning ordinance is developable. The balance 0.155 acres is in the flood way fringe but could be used for green space. The Court finds that the sales comparison approach is the correct method of valuation and gives most weight, both before and after the taking, to the comparable sales mutually relied upon by both appraisers (Stropp’s L-1, L-2, L-3 and Galliher’s L-1, L-3 and L-4). In reviewing the adjustments made to these comparables by the parties’ appraisers in the before taking appraisals, the Court finds Claimant’s adjustment for size should be eliminated for the developable portions since the developable size as determined by the Court of 1.712 acres is in line with the size of the comparables. This makes the range for the developable portion of the property $225,000 per acre per Claimant’s valuation to Defendant’s $257,000 per acre ($5.90 per square foot). The Court finds Mr. Stropp’s pre-taking valuation most appropriate. The Court also accepts Mr. Stropp’s pre-taking valuation of $1.50 per square foot or $65,340 per acre for the 1.712 acres necessary for green space requirements and the $.20 or $8,730 per acre for the excess unusable portion of the parcel appropriate. Therefore, the before value of the subject parcel is $587,000 allocated as $440,000 for the 1.712 acres of developable property as defined by the Town of New Hartford zoning ordinance (1.712 acres X $257,000 per acre); $112,000 for the 1.712 acres necessary for green space requirements (1.712 acres X $65,340 per acre); $35,000 for the balance of the property (3.976 acres X $8,730 per acre).
In the after valuation, Claimant adjusted the comparable sales downward 20% after the taking for the restricted access (right in - right out). The Court finds no evidentiary support for this deduction. This leaves Claimant’s per acre valuation at $225,000. The State adjusted the comparable sales upward 20% for more favorable frontage and exposure. On comparable sale L-3, this adjustment should not be made because it has exposure on three roadways. The Court finds that the State’s square foot value should be $5.17 or $225,205 per acre. The Claimant’s after value for the 1.667 acres of developable land is $375,075 and the State’s is $375,400(R). The Court accepts Defendant’s after valuation of $375,400[R] ($225,205 per acre X 1.667 acres). The Court accepts Defendant’s valuation of the 0.155 acres in the flood fringe
2[0]
of $1.10 per square foot ($47,916 for the per acre value) or $7,000(R). Thus, the post-taking value of the property is $382,400. The Court finds that the direct damages for the State’s appropriation are:
$587,000
- 382,400
$204,600
Therefore, the Court awards Claimant $204,600, with appropriate interest from November 2, 1999, the date of taking, until May 2, 2000, six months subsequent to the date of taking, and from February 28, 2002, the date of filing of the claim, to the date of Decision and thereafter to the date of entry of judgment herein, pursuant to CPLR 5001 and CPLR 5002; and Court of Claims Act § 19(1) subject to § 19(4).
The award to Claimant herein is exclusive of claims, if any, of persons other than the owners of the appropriated property, their 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, pipe, water, sewer and railroad lines. All motions not heretofore ruled upon are denied. LET JUDGMENT BE ENTERED ACCORDINGLY, and it is
ORDERED, that to the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).

July 5, 2006
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


Before Valuation
:
7.4 acres $587,000

1.712 developable acreage X $257,000(R) = $440,000

($5.90 per square foot)


1.712 density acreage X $65,340 per acre = $112,000

($1.50 per square foot)


3.976 excess acreage X $8,730 per acre = $35,000

($0.20 per square foot)


After Valuation
:

1.822 acres $382,400


1.667 developable acreage X $225,205 per acre = $375,400

($5.17 per square foot)


0.155 acres of density acreage X $47,916 per acre = $7,000(R)

($1.10 per square foot)


Total Direct Damages
: $204,600



[1].See Defendant’s appraisal report, Exhibit J, and Claimant’s appraisal report, Exhibit 18. Both used November 2, 1999 as the date of taking for valuation purposes.
[2].Exhibits 1-A and 1-B.
[3].Exhibit 1-C.
[4].Claimant testified that this occurred in 1995, however, Defendant introduced pictures showing that the buildings and paved right-of-way were still being used in December 1998. Regardless, the buildings and right-of-way stopped being used when the Judd Road extension was being constructed.
[5].Exhibit 10.
[6].Exhibit 3 was received in evidence over the Defendant’s objection. The Court finds the agreement admissible pursuant to Novack v State of New York, 61 AD2d 288.
[7].Exhibit B.
[8].Exhibit 18.
[9].The flood way was defined as the flood plain boundary, that area within a flood plain in which the water from a 100-year storm would flow. The outer limits of the flood way are the flood way fringes where flood waters from a 100-year storm would not be expected to rise more than one foot. (Ehre, transcript, p. 69, 13-15).
1[0].Exhibit 18.
[1]1. Exhibit 16. The original estimate was $30,000 in Mr. Ehre’s report (Exhibit 18), but Mr. Carr testified at trial that the cost was actually $59,000.
1[2].Pursuant to the Town of New Hartford Zoning Ordinance, Exhibit 21.
1[3].Value in the report was actually $874,400 however at trial this was reduced by the additional $29,000 cost for wetland mitigation testified to by Mr. Carr.
1[4].Exhibit H.
1[5].Exhibit J
1[6].This is the per square foot value Mr. Stropp calculated as the before value of the property. However, based upon the breakdown allocation, the per square foot value should actually be $7.60 ($5.90 + $1.50 + $0.20 = $7.80].
1[7].The Court has included the conversion of Mr. Stropp’s square foot valuation to a per acre valuation for comparison with Mr. Galliher’s appraisal calculations.
1[8].Mr. Stropp defined a “paired sale” analysis as a review of two sales to determine the difference attributable to a specific variable (i.e., location, size) in order to allocate a value to that particular variable.
1[9]. Exhibit J.
2[0].The Court adopts the State’s land categories in the after valuation as well.