New York State Court of Claims

New York State Court of Claims

CHESTER INDUSTRIAL PARK v. THE STATE OF NEW YORK, #2007-029-029, Claim No. 108833


Damages for appropriation of industrial park vacant land. Loss of access. Wetlands

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):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 7, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is a timely filed and unassigned claim for the partial appropriation by the State of New York of claimant’s real property pursuant to Section 30 of the Highway Law and the Eminent Domain Procedure Law. The project is described as PIN 8006.56.201, Chester – Florida, S.H. No. 1809, Map No. 117, Parcels 169 (Fee), 170 (Fee) and 171 (Permanent Easement). The taking maps were filed on January 31, 2002, notice of the appropriation was served on claimant on or about February 21, 2002 and the instant claim was filed on January 27, 2004, and the court adopts the description of the appropriated property as shown on the filed maps. The taking involved portions of four lots [1] that originally totaled 27.23 ± acres and were part of claimant’s 300-acre Chester Industrial Park located in the Village of Chester in Orange County. All four lots were undeveloped vacant land. The taking consisted of 4.03 ± acres from Lot 1.1 (leaving 8.57 ± acres in that lot), 0.85 ± acres from Lot 2 (leaving 4.00 ± acres in that lot), virtually all (4.00 ± acres) of Lot 3 and two small portions (totaling 0.1 ± acres) of Lot 4, leaving claimant with a remainder of 18.24 ± acres of the original 27.23 ± acres.

The purpose of the taking was the relocation and reconstruction of State Route 94, which formerly abutted the northerly borders of Lots 1.1 and 2. The highway was re-routed in a southeasterly arc, transecting Lots 1.1, 2 and 3.

There were two major items of contention between the parties. Claimant contended that the 8.57 ± acre remainder of Lot 1.1 was landlocked as the result of the taking and thus has no remainder value and that the 4.00 ± acre remainder of Lot 2 suffered significant consequential damage resulting from the change of its shape and limitation of access caused by the taking. Defendant’s position was that neither parcel suffered consequential damage, with the exception of two small sections of Lot 1.1 that were cut off from the main remainder by the taking.

Both appraisers used the market data method of valuation. Claimant’s appraiser, Daniel F. Sciannameo, utilized five comparable sales of vacant industrial land and after adjusting for time (in all cases at an annual rate of 5%), and applying relatively minor adjustments to each comparable, he arrived at a before value, applicable to all four of the lots, of $105,000.00 per acre, or $2.41 per square foot ($2.41/sf). His total before value, for the 27.23 acres affected by the taking, was $2,859,150.00.

Sciannameo analyzed each lot separately in the after situation. His opinion was that Lot 1.1 had no residual value after the taking because it had become “essentially landlocked” [2] by virtue of the loss of access to old Route 94 and to Chester Boulevard. The reconstruction of Route 94 removed the at-grade frontage that the lot formerly had on the State highway and substituted the new highway, built on a steeply-sloped berm 10 to 12 feet above the lot leaving no legal or practicable possibility of physical access according to Sciannameo. Chester Boulevard, the other road abutting the lot prior to the taking, was severely truncated by the new construction, with only a small stub that was insufficient to provide any access. The southerly border is a 30-foot wide navigable waterway, separating it from property also owned by the claimant, and the westerly border is property not owned by the claimant. Thus, Sciannameo considered the remainder worthless and valued it as a total taking.

Although Lot 2 did not suffer the total isolation Sciannameo attributed to Lot 1.1, he considered its access impaired and inferior to what existed prior to the taking. It lost any access to Chester Boulevard and, while its relationship to old Route 94 was unaffected, that road now ends at a T intersection with new Route 94. He noted that the lot is now irregular in shape, rather than rectangular, and maintained that, since the new highway had the effect of physically separating Lot 2 from the rest of the industrial park, the lot lost its “synergy” with the park. Using the same comparable sales as in the before situation, with different adjustments, he concluded that the remainder of Lot 2.2 was now worth $75,000 per acre rather than $105,000 per acre, or $1.72/sf rather than $2.41/sf.

Lot 3 was essentially a total taking, with the small 4,558 square foot remainder identified by defendant as an uneconomic remainder and considered by defendant’s appraiser as “almost a whole take” (Ex. B, p 65), which was how Sciannameo valued it.

The taking from Lot 4 was minor, 0.1 ± acres from the original 5.69 ± acres, and, although he used the same comparables with the same adjustments as in the before situation, his after value was $100,000/acre rather than $105,000/acre, a discrepancy that was not explained either in his appraisal or in his trial testimony.

In addition to this discrepancy, defendant highlighted a number of other problems with Sciannameo’s approach and methodology, including his failure to evaluate a Federal wetlands designation affecting Lot 1.1, and his failure to take into account differences among the four lots and specific circumstances affecting his comparables. The two most significant deficiencies alleged by defendant were Sciannameo’s unitary valuation of the four lots in the before situation, rather than considering each one separately and taking into account the unique circumstances affecting each lot, and his mistake as to the zoning of Lot 1.1 and Lot 2. It developed during trial that, although the Village of Chester zoning map depicted all four lots as being subject to M-1 zoning (warehousing and light manufacturing activities), in fact these two lots had been rezoned to B-2 (general business) in 1987 at claimant’s request. [3] Sciannameo ultimately conceded that his appraisal was in error as to the permitted uses of two of the four lots taken in this appropriation. Since B-2 zoning allows for a much greater variety of uses than M-1 zoning (e.g., wholesale and retail establishments, banks, theaters, filling stations, etc.), this error fatally impaired his conclusions as to the highest and best uses of these two lots as well as his evaluation of them generally.

Michael Bernholz, defendant’s appraiser, took a somewhat different approach to valuation, at least with respect to Lot 1.1. In fact, he submitted two appraisals, one regarding Lot 1.1 [4] and one regarding Lots 2, 3 and 4 [5]. He testified that when he looked at the construction plans for new Route 94, he noticed a reference to “FW,” meaning federal wetlands, over portions of Lot 1.1. Upon further inquiry, he was provided with a D.O.T. Wetland Boundary Plan, [6] consisting of four maps, the first of which shows Lot 1.1 with a significant portion designated as “PEM1 (Mowed).” “PEM1” is defined in the map’s legend as “Palustrine Emergent, Persistent Wetland.” Asked how this information affected his evaluation of the highest and best use of Lot 1.1 before the appropriation, he responded:
“In my estimate, there’s not a real big market for wetlands to be sold in the open marketplace. And the wetlands do, or at times, can have a value to a neighboring property. And sometimes adding wetlands to a neighboring property, if you’re in control of that neighboring property, it can change the density or the buildability of the neighboring property in a positive way”. [7]

Bernholz stated he “researched the market” and found that properties that “sold with wetlands” did so at very low prices – thirty to sixty cents per square foot (id.). Taking note of the fact that claimant owned two lots to the south of Lot 1.1, [8] he came to the conclusion that the highest and best use of Lot 1.1 prior to the appropriation was to annex it to these other two lots and thereby increase the buildable area of the other two lots by 1.5 acres. He explained that the zoning applicable to the other two lots allowed for development of a maximum of 50% of the acreage – in this case, 4 ± acres – notwithstanding that compliance with the setback requirements would have allowed development of 5.5 acres of the 8.2 acre parcel. The addition of Lot 1.1, by increasing the total acreage of the new, combined lot would allow full usage of the 5.5 acre development potential. Thus, based on his determination that assembling Lot 1.1 with these two lots to its south was its highest and best use, he utilized three comparable sales and arrived at a before value of $1.40/sf for this combined lot. [9]
Since the reduction of Lot 1.1 from 12.6 ± acres to 8.57 ± acres by the subject appropriation would not reduce its assemblage value to the two other lots (i.e., the addition of 8.57 acres would also allow development of 5.5 acres of the newly-assembled lot), Bernholz found no consequential damages to Lot 1.1 arising from the taking, other than two small areas of Lot 1.1 that were severed from the remainder by new Route 94. The remainder of his assembled lot contained three parcels: 15.8116 ± acres, 5,175 square feet and 36,415 square feet, respectively. Using his $1.40/sf before value, Bernholz concluded that damages for the taking of Lot 1.1 amounted to $246,000 1[0] for the direct taking of 175,704 square feet plus $57,600 for the destruction of the value of the two smaller portions (41,590 square feet @ $1.40/sf, less $600.00 nominal value), for total alleged damages to Lot 1.1 of $303,600.

Turning to Block 2, Lot 2, Bernholz found that its highest and best use before the taking was a commercial use in accordance with the applicable B-2 zoning; e.g., a retail strip shopping center, office building or recreation facility. Utilizing three comparable sales, one of which he adjusted + 5% and the other two - 15%, he arrived at an indicated value for Lot 2, prior to the taking, of $4.10/sf.

Bernholz’s opinion was that the highest and best use of Lot 2, after the taking and the reconstruction of Route 94, remained the same as in the before situation. Although the frontage that the lot formerly had on Chester Boulevard was eliminated, its frontage on and access to old Route 94 was unchanged and he asserted that there were various means of constructing ample access from old Route 94 and from a newly-built spur road that connects to old Route 94 with new Route 94. He noted that the lot was left with the same utilities – water, sewer and gas – that it had prior to the taking and maintained that, although the shape of the lot had changed, the remainder lot still meets the minimum lot size and frontage requirements for construction in accordance with the B-2 zoning requirements and the taking therefore did not impair the value of the remainder. Utilizing the same $4.10/sf value as in the before situation, Bernholz valued the taking of Lot 2 at $124,700 (R) (30,414 square feet taken times $4.10), plus $28,200 (R) for the permanent easement covering 7,649 square feet, which he stated lost 90% of its value (i.e., 7,649 times $4.10 times 0.90), all totaling $152,900 in damages for Lot 2.

Bernholz evaluated Lots 3 and 4 as R-1 zoned property, utilizing three comparable sales, two of which were also used by claimant’s appraiser in his overall evaluation of the four lots at issue herein. Bernholz’s indicated value for Lots 3 and 4, after analysis and adjustment of the comparables, was $2.25/sf, while Sciannameo’s figure was $2.41/sf. Bernholz noted that Lot 3 was almost entirely taken, with only a 4,557 ± square foot landlocked remainder that he characterized as uneconomic and assigned a value of $100, with which claimant agreed. Thus, his calculation of total damages for the taking of Lot 3 was $392,000 (R) (174,282 square feet times $2.25 = $392,100 minus $100 residual value of remainder).

The taking from Lot 4 was minor: 4,635 square feet from the original 252,648 square feet, leaving a remainder of 248,013 square feet. He observed that the taking affected neither the highest and best use of Lot 4 (development in accordance with M-1 zoning) nor its frontage on or access to the adjoining roads, a conclusion with which claimant’s appraiser did not disagree. Thus his damages for Lot 4 were limited to the land value of the taking at $2.25/sf, or $10,500 (R).


Lots 3 and 4

Valuation of these two lots presented few issues for the court, since the parties essentially agreed that the highest and best use of both lots was development in accordance with M-1 zoning, that Lot 3 was a total take and that Lot 4 incurred damages limited to the direct loss of a minor portion of its total acreage, with no consequential damages to the remainder. The sole difference was claimant’s land valuation of $2.41 compared with defendant’s $2.25 figure.

In determining the correct figure representing the fair market value of these two lots, the court is initially mindful that claimant’s valuation was simply the application of the figure that he determined was applicable to all four lots at issue herein, without appreciating that the other two lots were subject to different zoning and without allowance for any differences among the four lots. Additionally, the court notes that two of Bernholz’s three comparables, nos. 1 and 3, were also utilized by claimant. After computing time-adjusted figures for the three comparables, Bernholz adjusted his sales nos. 1 and 3 downward 5% each to account for the superior location of the comparables – adjacent to Route 17, the major highway in the area – to arrive at his $2.25 figure.

Given the previously discussed problems with claimant’s appraisal, the court finds no reason to deviate from Bernholz’s valuation of Lots 3 and 4 of $2.25/sf.

Thus, damages for the taking of these two lots are computed as follows:
Lot 3:
Before Value (174,282 s.f. times $2.25) $392,135
After Value (residual value of landlocked 4,558 s.f.) 100
Damages $392,035
Total Damages $392,035
Direct 381,879
Consequential 10,156
Lot 4:
Before value (252,648 s.f. times $2.25) $568,458
After value (248,013 s.f. times $2.25) 558,029
Damages (all direct) $ 10,429

Lot 2

The court finds that claimant’s appraiser was mistaken as to the applicable zoning and agrees with defendant’s conclusion that the highest and best use of Lot 2, both before and after the taking, was development in accordance with B-2 zoning, as indicated in the approved rezoning application (see fn. 4). Since claimant presented no probative evidence as to valuation in this context, the court is left with Bernholz’s comparable sale analysis which, after examination and adjustment of three comparable sales, arrived at a value of $4.10/sf. The court finds that this analysis, as expressed in his appraisal and testimony, was cogent and well-founded, and adopts this figure. 1[1]

The court also agrees with Bernholz that the remainder of Lot 2 suffered minimal consequential damages, other than the 7,649 square foot portion affected by the permanent easement. The lot retains its former frontage on, and potential access to and from, old Route 94 and, although it no longer has frontage on Chester Boulevard, it has access to and from new Route 94 via the T intersection with old Route 94, best seen on an aerial photograph of the area after the reconstruction of the highway. 1[2] The remainder of the lot is sufficient so that compliance with the minimum lot size and frontage requirements of the zoning code was unaffected by the loss of acreage, and the court finds that its highest and best use, after the taking, remained the same as before. Moreover, claimant’s appraiser’s contention that Lot 2 lost its “synergy” with the rest of the 250-acre industrial park by virtue of the reconstruction of Route 94 was without evidentiary basis in this record. Any such loss of synergy more directly resulted when claimant successfully petitioned the village board to approve the zoning change to allow construction of a shopping center on Lots 1.1 and 2. Viewed in this light, the reconstruction of Route 94 so as to separate Lot 2 from the rest of the industrial park was not at all inconsistent with claimant’s view of and plans for the property.

Based on the foregoing, the court finds that damages for Lot 2 are limited to the value of the taken portion, plus the impairment of value to the portion covered by the permanent easement, for which the court accepts Bernholz’s application of a 90% impairment of value:
Before value (209,088 s.f. times $4.10) $857,260
After value (178,674 s.f. times $4.10) 732,563

Permanent Easement (7,649 s.f. times $4.10
times .90) 28,225
Damages $152,922

Lot 1.1

The probative value of claimant’s appraiser’s evaluation of Lot 1.1 was materially impaired by mistakes as to the applicable zoning and the failure to consider the wetlands designation covering a portion of the lot, leading to an improper conclusion as to the lot’s highest and best use. Unfortunately, defendant’s appraiser’s evaluation of this lot also contained significant errors, relying as it did on a series of assumptions and conclusions without support in the record.

Bernholz’s approach to Lot 1.1 was based on his opinion that the designation on a 2002 D.O.T. Wetland Boundary Plan 1[3] of a portion of the lot as “Palustrine Emergent, Persistent Wetland” had the effect of prohibiting all development of the lot, thereby reducing the value of this property to an essentially nominal value of .30 to .60 cents per square foot. Absolutely no evidence was submitted in support of this conclusion of total development preclusion. Neither of the parties provided any explanation as to what effect such a designation would have on potential construction in accordance with the zoning or how defendant was able to reconstruct Route 94 so that it now goes right through the designated area. 1[4] All that was presented was Bernholz’s “estimate” that there was not “a real big market” for properties with wetlands designations, and his statement that he did some unspecified research and determined that, standing alone, the property would have only nominal value.

The court finds that Bernholz’s contention that the highest and best use of Lot 1.1, prior to the taking, was limited to assemblage with Block 2, Lots 2 and 3 for the purpose of expanding the construction potential of those two lots was the result of conclusions and assumptions based on data not before the court. 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 [Rudnick], 25 NY2d 146, 149 [1969]; see also Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535 [1974]). This principle applies equally to a speculative or hypothetical use advanced by defendant.

Notwithstanding the deficiencies in the proof presented by both claimant and defendant, the court is charged with the constitutional duty of determining just compensation for the property taken,1[5] requiring ascertaining the fair market value of the property at its highest and best use, regardless of whether it was being so used at the time of the taking (Matter of Town of Islip [Mascioli], 49 NY2d 354 [1980], Keator v State of New York, 23 NY2d 337, 339 [1968]). Fortunately, despite the errors made by both appraisers, there is sufficient information in the record upon which to base this determination.

Initially, although Bernholz’s conclusion that the wetlands designation reduced the value of Lot 1.1 from $4.10/sf (the value he found for the otherwise similarly situated and zoned Lot 2) to $0.30 to 0.60/sf was unsupported by any evidence, his premise – i.e., that the wetlands designation needs to be taken into account in valuing this lot – was correct. Claimant’s principal, Robert Paulius, confirmed that Black Meadow Creek is subject to the jurisdiction of the U.S. Army Corps of Engineers. That being the case, Bernholz was correct in asserting that construction on Lot 1.1 would require a permit or clearance pursuant to the Clean Water Act of 1972 (CWA) 1[6] and its attendant regulations, 1[7] since Lot 1.1 contained a wetland with a “continuous surface connection” to a navigable creek that was part of the “waters of the United States.” 1[8]

Notwithstanding the 1987 rezoning of Lot 1.1 from M-1 to B-2 for the purpose of constructing a shopping center, it is apparent that such a use would not have been possible as of the taking date, either from a regulatory or a practical point of view. Nevertheless, that conclusion does not mean, as alleged by Bernholz without any supporting evidence, that no activity could take place on the land and that it was essentially limited to scrub land value. Indeed, the Army Corps of Engineers itself recognizes that construction projects with potential impact on wetlands may have “tremendous value for individuals, communities and the economy,” and views its role as balancing the economic benefits accruing from such construction activity with the need to protect the nation’s water resources. 1[9] Thus, the issue becomes what was the highest and best use of Lot 1.1 before the taking, given the restrictions imposed by the wetlands designation and given the policy and perspective of the Army Corps of Engineers as expressed in both its regulations and its official publications.

The court finds that the “principal permitted uses” applicable to B-2 zoned land – wholesale and retail establishments, restaurants, hotels, movie theaters, service stations, etc. – were not compatible with the restrictions imposed by the CWA and regulations, and such uses do not reflect the lot’s highest and best use before the taking. 2[0] The court further finds that many of the permitted uses applicable to M-1 zoned land – manufacturing operations, research laboratories and business and industrial facilities – are similarly incompatible with current Federal policy on wetlands. 2[1] Nevertheless, use of the land for a minimal-impact warehouse or storage facility is something that would be compatible with the Army Corps of Engineers’ approach (balancing economic development with protection of wetlands) and would also be practical, given that it was part of the larger industrial park. The court finds that such a use would have been permitted by the Village as well, and that such was the highest and best use of Lot 1.1 prior to the taking.

As to valuation, the court starts with the $2.25 figure applied to Lots 3 and 4 and finds that such figure should be reduced by 50% in view of the limitations on potential uses as described above. Accordingly, the court will utilize a valuation of $1.125/sf which applied to the pre-taking 12.6 acre lot (548,856 square feet) yields a before value of $617,463.

After the taking, the remainder of Lot 1.1 comprised three separate portions arising from the reconstruction of Route 94. The parties agreed that the two smaller portions (totaling 41,590 square feet) are without economic value due to their size and isolation. As to the third remainder parcel of 331,562 square feet, claimant contends, and the court agrees, that after the taking this parcel no longer has any suitable access to any road (Priestly v State of New York, 23 NY2d 152 [1968]; Holmes v State of New York, 279 App Div 958 [3d Dept 1952]; compare Red Apple Rest. v State of New York, 27 AD2d 417 [1967]). In fact, other than a small strip directly adjacent to Black Meadow Creek, Lot 1.1 is separated from Chester Boulevard by lands taken by the State. Thus, the State itself cut off the access/egress that it now alleges for Lot 1.1.

“The question of suitability is a factual one directly related to the highest and best use of the property . . . as determined before the taking” (Matter of County of Rockland [Kohl Indus. Park Co.], 147 AD2d 478, 479 [2d Dept 1989]). Here, the access Lot 1.1 formerly had to old Route 94 was eliminated. Chester Boulevard, the lot’s former easterly border, no longer provides any suitable access as the result of the taking. New Route 94, now the northerly border of Lot 1.1, was built on a berm, significantly elevated from the remainder and separated from it by a guide rail. The court finds that neither new Route 94 nor what remains of Chester Boulevard provides suitable access to the remainder. The court’s viewing of the property was a significant factor in reaching this conclusion. Since the southerly border consists of Black Meadow Creek and the adjoining lands to the west are not owned by claimant, the court finds that the subject taking deprived claimant of any suitable access to Lot 1.1.

Nevertheless, the court does not agree with claimant that the loss of access as the result of the taking was the equivalent of a total taking of Lot 1.1. Although the court did not accept defendant’s appraiser’s view of Lot 1.1 as limited to its assemblage value with Block 2, Lots 2 and 3 in the before situation, the deprivation of access to Lot 1.1 caused by the taking makes use of that lot as a “density contributor” to the adjoining lots the only possible meaningful economic use of the lot after the taking. In effect, the State has now caused the exact condition that it erroneously alleged as the “before” state of Lot 1.1. The only basis in the record for valuing this use is defendant’s estimation of the value of undevelopable wetlands generally, which was .30 to .60 cents per square foot. Given that such use of the property would require approval from the village zoning authorities, and possible from the Army Corps of Engineers, the court will utilize the more conservative figure as representing the after value of the 331,562 square foot portion of the remainder of Lot 1.1

Accordingly, damages for the taking of Lot 1.1 are computed as follows:
Before value (548,856 square feet times $1.125) $617,463
After value (331,562 square feet times $0.30) 99,469
Total Damages $517,994

Direct Damages (175,704 square feet times $1.125) $197,667

Consequential Damages :

(41,589 square feet times $1.125) $ 46,788

(331,562 square feet times $0.825) 273,539


Two minor items remain to be addressed. First, claimant introduced evidence of expenses incurred in connection with the subdivision of the industrial park. These expenses are not a legitimate item of compensation to be added to the value of the land, but rather are reflected in the land values to the extent that they contributed towards the highest and best use of the property. They are irrelevant to any determination to be made in this case. There was testimony, however, that part of the taking included a sign for the industrial park that had a sound value as of the taking date of $13,640. There was no evidence to the contrary, and claimant is entitled to be compensated for the loss of the sign.

To summarize, the court finds that claimant suffered damages by virtue of the subject appropriation, as detailed herein, as follows:

Lot 1.1 $517,994

Lot 2 152,922

Lot 3 392,035

Lot 4 10,429

Sound value of sign 13,640

Total Damages $1,087,020

In accordance with the foregoing, claimant is entitled to a total award of $1,087,020, with statutory interest from January 31, 2002 through August 21, 2002 and from January 27, 2004 through the date of this decision (Court of Claims Act § 19) and thereafter to the date of entry of judgment, plus return of any filing fee actually paid.

The award to claimant herein is exclusive of the claims, if any, of persons other than the owners of the appropriated property, their 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 properties 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.

Let judgment be entered accordingly.

September 7, 2007
White Plains, New York

Judge of the Court of Claims

[1]. Identified on the tax maps as Block 1, Lot 1.1 and Block 2, Lots 2, 3, and 4.
[2].Trial Transcript, Vol I, p I-106.
[3].See Exhibit D, Resolution of Village of Chester Board of Trustees dated April 6, 1987. The resolution states that the purpose of the change was to allow construction of “a shopping center with approximately 64,500 square feet of structures (i.e., stores, bank, restaurant, food store) and a parking lot with approximately 375 parking spaces” (id.).
[4].Exhibit A.
[5].Exhibit B.
[6].Exhibit H.
[7].Vol. III, p III-23.
[8].These two lots are known as Block 1, Lots 2 and 3, different lots than Block 2, Lots 2 and 3 that were part of the subject appropriation.
[9].For this analysis, he utilized comparables with zoning equivalent to M-1, notwithstanding that Lot 1.1 was subject to B-2 zoning, because the two lots to which he annexed Lot 1.1, where the actual construction would take place in his hypothetical scenario, were subject to M-1 zoning.
[1]1.Unsurprisingly, in its post-trial submission, claimant essentially accepted defendant’s appraiser’s valuation rather than the lower value claimed by its own appraiser based on his mistake as to the applicable zoning.
1[2].Exhibit 5.
1[3].Exhibit H, prepared as part of the subject construction project.

1[4].Pursuant to the Freshwater Wetlands Act (Article 24 of the Environmental Conservation Law),and the regulations promulgated thereunder (6 NYCRR Parts 662, 663 and 664) freshwater wetlands are characterized based on the type of vegetation that grows there. “Palustrine” refers to “inland, nontidal wetlands characterized by the presence of trees, shrubs, and emergent vegetation (vegetation that is rooted below water but grows above the surface)” (The American Heritage Science Dictionary, Houghton Mifflin Company,,, Aug. 7, 2007). In order to be subject to State regulation pursuant to the Freshwater Wetlands Act, a designated wetland must be at least 12.4 acres or must be determined to be of unusual local importance (ECL § 24-0301; 6 NYCRR § 662.4 [a]). The wetland shown on Exhibit H, which includes the PEM1 portion of Lot 1.1, as well as the portion of Black Meadow Creek that forms the southerly border of Lot 1.1 and Lot 2, totals 9.77 acres, thus current State law would not require a permit for construction on Lot 1.1. These matters were not addressed by the parties. Bernholz indicated he was personally unfamiliar and inexperienced in the wetlands permitting process. He assumed that the D.O.T. applied for permission – presumably from the U.S. Army Corps of Engineers (see infra.) – to alter the topography of the land in connection with the reconstruction of Route 94, but had no actual knowledge. Compare Exhibit H, D.O.T. Wetlands Boundary Plan, with Exhibit 5, aerial photograph post-construction. The court’s inspection of the site confirmed what is shown on these two exhibits: that the reconstruction of Route 94 involved construction of a berm that elevates the newly-constructed road significantly above the level of the pre-construction lot, including portions covered by the wetlands designation.
1[5].“A condemnation proceeding is not a private litigation. There is a constitutional mandate upon the court to give just and fair compensation for any property taken. This means ‘just’ to the claimant and ‘just’ to the people who are required to pay for it.” (Matter of County of Nassau, 43 AD2d 45, 48 [2d Dept 1973]).
1[6].33 U.S.C. §§ 1251 et seq.
1[7].33 C.F.R Parts 320 - 331 (see, August 7, 2007)
1[8].Rapanos v United States, 126 S.Ct. 2208, 2227 [2006]; 33 CFR § 328.3.
1[9].U.S. Army Corps of Engineers, Regulatory Program: Value to the Nation,, August 7, 2007.
2[0].Exhibit B, p 61.
2[1].Exhibit B, p 62; Exhibit 1, p 24.