|Claimant(s):||NOCO ENERGY CORP.|
|Claimant short name:||NOCO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||PHILIP J. PATTI|
|Claimant's attorney:||WOLFGANG & WEINMANN
MICHAEL G. WOLFGANG, ESQ.
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 28, 2007|
|Appellate results:||67 AD3d 1354|
|See also (multicaptioned case)|
This is a timely filed and unassigned claim for the total appropriation of a parcel of land, improved with a building operated as a mini-mart convenience store with gasoline sales, pursuant to Highway Law §30 and the Eminent Domain Procedure Law in a proceeding entitled "Stutson Street B.I.N. 3317120 Over Genesee River, Map No. 2, Parcel No. 2." It was stipulated by the parties that title vested in the Defendant on March 16, 2000, the same date that the taking map was filed in the Monroe County Clerk's Office. The Court adopts as accurate the description of the property taken as set forth on the taking map. The Claimant was served with the taking map and notice of appropriation on April 19, 2000, and the claim was filed with the Clerk of the Court of Claims on February 23, 2001. There is no dispute that Claimant was the owner in fee of the subject property, having acquired it on December 3, 1992. It was part of a multiple-parcel sale to Claimant by Northeast Stations, d/b/a Cumberland Farms, Inc., Debtor in Possession, and Claimant continuously operated it as a convenience store with a gasoline sales component from the date of transfer to the date of the appropriation. The Court has viewed the property (Court of Claims Act §12).
The subject property is located at the intersection of Lake Avenue and Stutson Street in the northern end of the City of Rochester. Lake Avenue and Stutson Street are active thorough-fares, with the former running in a north-south direction and the latter carrying traffic in an east-west direction. Lake Avenue is a main route to Charlotte Beach, Lake Ontario and an entrance to and exit from the Ontario State Parkway, which provides access to state parklands and lake beaches westerly to Hamlin and its environs. It receives heavy use therefore during the spring, summer and fall months. It also is a primary route to and from the City of Rochester for those who live in the Charlotte community of Rochester year-round.
Stutson Street and the Stutson Street Bridge (at the time of taking) provided the only access north of Route104, over the Genesee River to Irondequoit to the east. It provided access to Irondequoit, Lake Shore Boulevard and Ontario State Parkway, which allows access to lake beaches, state parks and counties to the west as previously noted.
The area generally was not experiencing commercial or residential growth at the time of the appropriation. However, according to the Defendant's expert, commercial values in the area had been stable, while there had been a decrease in residential values somewhat over the years (Exhibit A, pp. 28-29). On the other hand, in its analysis of the area Claimant notes in somewhat less depressing language that while the area was not evidencing a growth or redevelopment of commercial or residential uses in the area, there was little useable land available for such development in the subject's vicinity.
Claimant's expert opines that, based on his study, traffic and spending patterns have remained stable and should continue to do so for the foreseeable future and therefore "...appropriately support the existing convenience store and gasoline sales at the subject location" (Exhibit 1, p. 17). He then concludes that the subject's area has all the components for the subject's use as well as for other "high end" retailers, without identifying which ones he believes would be interested in locating in the area.
The trial of this matter took place in two segments, occasioned by an initial ruling I made at the outset of the first part of the trial. Claimant, at the commencement of the trial, stipulated to the Defendant's value of the land and building improvements. Since that would leave only the value of the unimproved land to be determined, I restricted Defendant's cross-examination of Claimant's expert to the land value. Defendant objected, since this would, in its opinion, not allow it to attack the credibility of the expert by exploring what it claimed were inconsistencies in arriving at his values for the land and building improvements. After the conclusion of this phase of the trial, Defendant moved for a new trial or, in the alternative, to reopen the trial and permit it to conduct a thorough cross-examination of the opposing expert. In a decision and order I directed that the trial be reopened for that purpose, but limited the extent and scope of the cross-examination (Noco Energy Corp., UID #2006-013-026, Claim No. 103873, M-70784, May 29, 2006, Patti, J.).(1) The trial concluded after this phase was completed.
In light of the foregoing stipulation by Claimant, I adopt as accurate the value of the land and building improvements as determined by the Defendant's expert and fix them as follows:
Land Improvements $130,500.00
Building Improvements $180,000.00
Prior to the appropriation, the subject's location enjoyed favorable exposure to traffic on Lake Avenue and Stutson Street. As I noted above, Stutson Street and the Stutson Street Bridge provided the only means of vehicular access over the Genesee River north of Route 104, some three miles to the south, while Lake Avenue carried traffic north and south past the subject. The construction of the new bridge over the Genesee River, with the redesign and relocation of the Lake Ontario State Parkway so that east-west traffic was no longer directed to Lake Avenue in order to access either the Parkway or the bridge, would have greatly reduced the subject's exposure to traffic to be sure. However, my task is to determine the value of the subject on the date of the appropriation, and not to consider the effect of the appropriation on the subject by reason of the new construction. This is even more imperative since the Defendant chose to take the entire parcel, leaving no remnant to be considered by me.
I have considered each of the vacant land sales offered by each party. I have also considered the rationale that the experts used in arriving at adjustments to the respective sales they chose and the resultant values ascribed to these sales to arrive at their opinion of the subject's value. In so doing, I have given greater consideration to Claimant's Sales Nos. 1 and 2, since they were acquired for development as service stations. However, their comparability to the subject is somewhat wanting, considering their locations and dates of sale. While Claimant's appraiser adjusts these sales upward to reflect the time differentiation between the date of the sale and the date of acquisition at 3% per year, there is a paucity of relevant proof to buttress his conclusion. Consequently, I find that any time adjustment to these sales should be reduced to better reflect the reality of the market. In addition, I have adjusted these sales to reflect their greater area than that of the subject, but not to the same degree that Claimant's expert opined regarding his Sale No. 2. Further, the locations of each of these sales are in areas experiencing growth both residentially and commercially, while the subject was in a somewhat less vibrant economic location based on the record before me, and thus they should be adjusted downward to reflect this difference.
Based on these considerations and the proof as established through the examination of Claimant's expert's opinion, I find that the subject's vacant land value under Claimant's analysis, and as I have adjusted it, to be $14.20 per square foot for 26,140± square feet, or $371,200.00(R).
I have also considered each of the Defendant's expert's vacant land sales in light of the proof on this record and have adjusted them accordingly to bring them into comparability with the subject. His appraisal testimony was somewhat lacking in the explanation of the various adjustments he made to each of his sales, and I found his testimony at trial wanting in his attempts to justify his opinions regarding the same. In particular, he made no adjustment for time, in spite of the fact that these sales occurred at least two years prior to the appropriation. While I am aware that the area in which the subject was located was not appreciating as aggressively as other areas of Rochester, even this expert conceded that the subject's location, as well as its size and shape, added to its highest and best use as vacant for commercial development. I find that a positive adjustment is required to each of his land sales. In addition, only one of his sales was a corner parcel, which in my opinion is an attractive feature for a developer, yet he made no adjustment to these sales to demonstrate the subject's favorable corner location. In addition, his explanation for a 10% positive adjustment under Sale No. 4 for "Total Area" was unsupported and not persuasive. As a consequence, I have made a further adjustment to reflect the fact that this sale is roughly three times the size of the subject. Regarding Sale No. 1, which he characterized in his appraisal as an "arm's length transaction," he conceded at trial that title into that grantee was had by a Referee's Deed, and that it could not be considered truly "arm's length." Also with regard to that sale, he made an adjustment under "Flood Zone/Assemblage," but made no adjustment to Sale No. 2 to reflect this factor. I found his explanation to be wanting in clarity and consistency as it related to this adjustment, requiring me to make a further adjustment to these sales to induce greater comparability to the subject.
Sale No. 3 was an out-parcel in a fully developed plaza in an area of Greece, New York, that was experiencing growth and was across from a major office park. In addition, there was considerable development ongoing in and around the area of the sale which the subject was not experiencing. I gave it less weight in my analysis of the subject's value for a myriad of reasons such as those mentioned above.
After careful analysis of each sale and the explanation of adjustments made by Defendant's expert, I find his adjusted per square foot value as vacant land to be $10.00, or $261,400.00.
It should be noted that one of Claimant's experts, James A. Hockey, who prepared a report relating to the attractiveness of the subject for development of a modern gasoline/ convenience store and which was a part of Claimant's Exhibit 1, was unable to appear at trial. Defendant moved to strike that report and any reference to it since it did not have the ability to cross-examine Mr. Hockey on his findings, which findings were relied upon by Claimant's appraiser in arriving at his conclusions of value. I had reserved decision on that motion and now deny it. Claimant's appraiser formed his conclusions based on his own analysis and limited use of the Hockey report to check his analysis.
Based on my examination of the sales offered for the vacant land value, the exhibits offered at trial, the examination of the witnesses by the well-prepared and experienced counsel, and my opportunity to view the witnesses, I find the vacant land value to be $11.75 per square foot for 26,140± square feet, or $307,150.00(R).
Since this was a total taking and the Claimant having stipulated to the value ascribed to the land and building improvements as fixed by the Defendant's expert at $310,500.00, I find Claimant's total damages to be $617,650.00.
Therefore, Claimant is awarded $617,650.00 for all damages, with appropriate interest thereon from March 16, 2000, the date of taking, until October 19, 2000, six months subsequent to the date of personal service (see Sokol v State of New York, 272 AD2d 604), and from February 23, 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); and subject to Court of Claims Act §19(4).
The award to Claimant herein is exclusive of the claims, if any, of persons other than the owner of the appropriated property, its tenants, mortgagees or 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 claims, if any, for the value of or damage to easements or appurtenant facilities for the construction, operation or maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer or railroad lines.
All motions not heretofore ruled upon are now denied. To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
November 28, 2007
Rochester, New York
PHILIP J. PATTI
Judge of the Court of Claims
1. Decisions and selected orders of the New York State Court of Claims are available on the Internet at www.nyscourtofclaims.state.ny.us.