New York State Court of Claims

New York State Court of Claims

ZAHURAK v. THE STATE OF NEW YORK, #2007-030-041, Claim No. 105941


No de facto taking, when State of New York closed driveway access onto State Route 44 from claimants’ property for public safety reasons associated with the installation of a signalized intersection nearby. This is not the type of interference with a private citizen’s property by governmental action that might result in a finding that there has been a de facto taking. Testimony of claimants’ expert as to the reduced value not credited.

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:
Third-party defendant’s attorney:

Signature date:
October 11, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Robert F. Zahurak and Lisa L. Zahurak are owners of property they purchased in 1991, located in the Town of Poughkeepsie at the northwest quadrant of the intersection of State Highway Route 44 and Cherry Hill Drive, a private road. The Claimants’ property consists of approximately 3.1 acres of land improved with a residence, an automobile body repair shop occupied by Rob’s Prestige Auto Body, Inc., and standard improvements such as internal paving, parking and storage areas. At the time of purchase, the commercial portion of the property existed as a legal non-conforming use of the property as it was zoned R-10 (single family residential).

Cherry Hill Drive services the Cherry Hill Townhouse complex, as well as Adams Fairacre Farms, Claimants’ neighbor to the east. The claimants’ property has ± 72 feet of frontage on Route 44 at Cherry Hill Drive, and ± 890 feet of frontage on Cherry Hill Drive. Claimants’ property has a deeded right of way for purposes of ingress and egress over Cherry Hill Drive [Exhibit 2], and was served by three curb cuts prior to December 1999. These included a 13- to 15-foot-wide driveway leading directly to State Route 44 [see Exhibit 1, p. 20 - 21] and two, 25- to 30-foot-wide, bidirectional driveways on Cherry Hill Drive. The southern-most Cherry Hill Drive driveway was approximately 220 feet from the intersection. The northerly driveway was approximately 280 feet from the intersection. The driveway leading from Route 44 was used as a means of ingress and egress to the residence. The driveways from Cherry Hill Drive led to - and still lead to - Claimants’ auto body business. [Exhibits H, I, J, K].

In 1996 Mr. Zahurak successfully sought rezoning of the entire property to general business in order to expand the commercial use of the property. Sometime after its purchase and before the 1996 application, the property had been rezoned from R-10 to RM (residential multi-family).

In and around 1998 and 1999 the property across Route 44 from Claimants’ property was in the process of being developed as a small shopping center. In December 1999 a traffic signal was installed in accordance with a State permit at the intersection of Cherry Hill Drive and State Route 44. The then present driveway access to Route 44 from claimants’ property was closed as a result, since it was within 30 feet of a traffic signal, and thus not in keeping with recognized engineering standards.[1] Such closure, and the closure of two other driveways onto Route 44 from properties not owned by these claimants, was one of the permit conditions.[2]

In a claim filed on April 22, 2002, claimants alleged various causes of action stemming from the closure of their driveway, some of which were dismissed in a Decision and Order filed on March 31, 2004 [see Zahurak v State of New York, UID #2004-030-509, Claim No. 105941, Motion Nos. M-67486, CM-67736 (Scuccimarra, J., filed March 31, 2004)].[3] Trial on the remaining cause of action alleging de facto appropriation was heard on June 19, 2007.

At the trial, Robert Zahurak testified concerning the circumstances leading up to the closure of the driveway and the alternative offers made to him for the asserted loss of access to State Route 44, as well as the alleged diminution to the value of his property, for which he seeks compensation. As he recalled it, the developer of the shopping center across State Route 44 approached him in June 1999 to advise that a traffic light would be installed at the intersection of Route 44 and Cherry Hill Drive, as permitted by the New York State Department of Transportation [DOT].

In correspondence reflective of a culmination of earlier discussions between the developer, claimants and the DOT, the Regional Traffic Engineer for the DOT wrote to Mr. Zahurak on December 10, 1999 and stated, among other things, that the signal had been activated on December 3, 1999, and that claimants’ driveway access to Route 44 would be closed permanently on December 15, 1999. [See Exhibit 5].[4] There is mention made in this letter that replacement access onto Route 44 - to be constructed at the expense of the developer - had been proposed and rejected by the claimants. Mr. Zahurak testified that the first replacement access proposed involved a curb cut to the “far far west”[5] on his property - “the house is from 20 and 40 feet back at that point [from Route 44]. The drive would cut in [from Route 44], make a 90-degree angle, and then run across the front of the property, and then take another less than 90-degree turn to access the side of the house.” Mr. Zahurak thought it would be “hard to maneuver, difficult to maintain, and would damage the marketability” because it would be “unsightly” to have a driveway across the front yard of the residence. [See Exhibit 3].

The December 1999 letter also mentions claimants’ rejection of proposed additional[6] driveway access to the residence portion of the property to be constructed at the developer’s expense from Cherry Hill Drive. [Exhibit 5]. Mr. Zahurak testified that this proposed alternate access was not feasible because “there was a 5-foot almost completely vertical shale hill coming off the curb of Cherry Hill Drive going straight up to the property. There is a plastic septic system right beyond, not strong enough to support a driveway” as he understood it. He also thought that “the site plan approved by the Town only permitted two entrances off of Cherry Hill that were already constructed” for the commercial access.

The shale hill described by claimant is shown in a photograph taken from Cherry Hill Drive, and shows shrubbery growing along the crest of the hill as well. [Exhibit 8].

Mr. Zahurak testified that his “biggest objection” to locating another driveway directly to the residence from Cherry Hill Drive was “all the traffic exiting Adams Fairacre Farms which used to exit onto 44 was now directed onto Cherry Hill. While traffic waits at the light, it backs up 250 feet, which is where the entrance would be to access the house. The main entrance to Adams had been 300 feet to the east [on Route 44] prior to the activation of the traffic signal.” Since the Route 44 entrance to Adams Fairacre Farms did not remain open, “all the traffic” uses Cherry Hill Drive. He said that since 1999, traffic conditions have “grown.”

Photographs taken on June 15, 2007 between 5:14 p.m. and 5:29 p.m. show a line of cars waiting to turn onto Route 44 from Cherry Hill Avenue. [See Exhibit 9].

Mr. Zahurak testified that the residential driveway onto Route 44 served the additional purpose - other than as access to the residence - of allowing his tow trucks to exit directly onto Route 44, rather than using Cherry Hill Drive.

At some unspecified point, his personal plans for his family changed. Originally, he resided with his family in the residence while operating the business at the same location. He and his wife purchased property elsewhere and built a home to which they moved. He testified that part of the “master plan” for financing a new home was to subdivide the subject property into two lots and seek rezoning so that the residential lot could be sold separately from the commercial lot. Although it was not clear from the testimony, this planning took place sometime after the 1996 business development, presumably when the survey of the property was done in April 1999. [Exhibit 3]. Mr. Zahurak testified that this plan was abandoned after the driveway to Route 44 was closed.

On cross-examination Mr. Zahurak agreed that before December 10, 1999, he had three entrances to his property and that after that date he had two. He agreed that he could drive onto the driveways that remained, proceed to the residence and park by the residence. He also acknowledged that as the owner of the entire property, he had control as to where any tow vehicles were stored, or any customer vehicles might park and block convenient entry onto any portion of his property. If someone was “blocking him,” Mr. Zahurak conceded he “could resort to self-help” as suggested by the defendant’s counsel. Indeed, the parties stipulated that as the owner of the property he is able to make whatever improvement he likes subject to whatever approvals may be required, and had done so prior to the driveway closure and since. Certainly, he had “doubled the size” of his business in 1996. Additionally, since the 1999 survey, for example, all the asphalt between the house and Cherry Hill Drive has been removed, as has the shale hill along Cherry Hill. [See Exhibits A through F].

Acknowledging that as an abutting owner to a state highway, he could apply for access to Route 44 from the State of New York, Mr. Zahurak conceded that he had never done so. Although Mr. Zahurak was aware of a deeded easement reserving access to Cherry Hill Drive, and was aware of his right to enjoy such easement, it was his understanding, he said, that he “only had a right to the two entrances” that had been there since 1991. [Exhibit 2]. Claimants never sought an additional driveway entrance onto Cherry Hill Drive from the Town.

In addition to never having applied for another driveway onto Cherry Hill Drive, claimants never actually applied for a subdivision of this property. During the time claimants have owned the property, although the uses had been commercial and residential - as it had been at its purchase - the zoning had been of one type only, changing from R-10 to RM to general business. Mr. Zahurak conceded that there is no defined lot line to the residential portion, nor is there one defining the commercial section. Any lot line that he would seek, he conceded, would be a new lot line to divide this property.

As the property exists now, there is a flat gravel area used for parking, immediately adjacent to Cherry Hill Drive. [See Exhibits E, F, G, L]. A parking garage that had been attached to the house [see Exhibit 1, p. 20] has been removed[7] and there is a patio in its place. [Exhibits E, F, G]. When asked if his residential tenants parked in the gravel area, he responded that they did. He said: “I could build a driveway there from the gravel parking area to the house if the Town permitted it.” As noted, that area was “paved at one point,” and he admitted he could “rip up the grass and re-pave it,” although on redirect examination he said that he “thought not” based on his “last conversation with the Town Planner.”

R. Peter Hubbell, Jr., claimants’ expert, testified concerning his appraisal of the subject property and a report he prepared relative to its value in December 1999. [Exhibit 1].

He testified concerning alleged damages to the property based upon closure of the driveway. He opined that in the scenario before closure of the driveway, the highest and best use of the property was its subdivision into two (2) separate lots, one a residential lot fronting on Route 44 and valued at $145,000.00, and the other a light industrial lot fronting on Cherry Hill Drive valued at $305,000.00. [See Exhibit 1]. In the situation after closure of the driveway, however, he opined that the highest and best use would be as a single lot with a mixed use that he valued at $366,000.00 [id.], because there could not be a subdivision as proposed, and the residential use instead became an accessory use to the light industrial use. There was a difference in value of $84,000.00, in his opinion.

When asked about his investigation and procedures, Mr. Hubbell said that in mid-October of 2000, he got a call from Mr. Zahurak, explaining that his driveway had been closed off and that he could no longer subdivide his property to create a single-family lot for sale. The witness “agreed to do a preliminary evaluation.” Mr. Zahurak met Mr. Hubbell at the property to guide him through his investigatory visit. Mr. Hubbell went through the body shop, was shown by Mr. Zahurak what configuration was proposed for the alternative driveway onto Route 44, was shown the shale hill adjacent to Cherry Hill Drive, which he then described in his report as approximately 6 feet above the level of Cherry Hill Drive; was shown where the plastic pipe septic system was and heard Mr. Zahurak’s view that it was inappropriate for putting in a driveway over that system, and was told about traffic flow backing up, a concern from a safety standpoint. The witness himself also observed traffic backing up at “mid morning,” cars parked on the asphalt area and trucks coming in and out of the business driveways. He visited the property in 2000 and in 2002. Although it was not clear from the testimony, it appeared that Mr. Hubbell visited the property a total of two (2) times.

Mr. Hubbell said that before closure of the driveway, the “obvious access was from Route 44,” allowing a simple subdivision of the property, no physical change to the property and no change in use. After closure, access would have to come through “the southerly activity on the industrial portion of the lot.” A potential purchaser would “not prefer,” he opined, “a property with only one access to the residential portion through the industrial portion of the property.” He also thought that with a residential property to be used as a rental, as opposed to owner occupied, it had a lesser value.

He said he was aware that the property in 1999 was zoned general highway business, and that the single family residence was not a permitted use under that zone. The auto body shop is a special permitted use. Thus the property as a whole is “considered to be a legal non-conforming use permitted under its current B-H zoning classification.” [See Exhibit 1, p. 28]. Based upon discussions he had with Town zoning officials, a rezoning of the residential portion of the lot back to R-10 - necessary to create the subdivision the witness said was the maximal use of the property in the “before” situation - would be relatively simple to obtain.

Thus, Mr. Hubbell said, the assumptions he made to reach his view as to the property’s highest and best use in the “before” situation were that he assumed area variances would be granted relative to the rear and side yard setbacks, assumed a subdivision to create the single- family residence lot, assumed legal access from the industrial section on Cherry Hill Drive, and assumed that such subdivision was “reasonably assumed to be probable.”

Mr. Hubbell testified that in making his assessments, he utilized the operative standards of the real estate appraisal business. The “Standards of Professional Appraisal Practice of the Appraisal Institute” apply when making such assessments he said. [See Exhibit 6]. Referring to said standards, Mr. Hubbell said that the three (3) municipal approvals he assumed were not “extraordinary assumptions” within the meaning of an applicable section of these published standards.[8] He said this was because when he was preparing his report he was given copies of Town Law §§267(b)(3) and 280-a for his review, and he concluded after reviewing these statutes that the issues presented by the proposed subdivision were answered therein.

With regard to Town Law §267-b[3], for example, dealing with subdivisions requiring area variances, he said obtaining an area variance for set backs would be “fairly straightforward” since the statute was “more concerned with variances as to lot lines impacting a neighborhood or a district” as opposed to what would be sought here. Based on his examination of the neighborhood there were mixed uses. To the west on Route 44, there are single family residential areas, to the east is the Adams Fairacre Farms complex. Across Route 44 on the southerly side was the new shopping plaza. More single-family residential areas are present on that southerly side of the highway as well. In the back of claimants’ property is the Cherry Hill Town Home project.

In the “after” situation, there would not be reasonable or suitable access for a single family detached owner-occupied dwelling in his view. The shared driveway, in his opinion, would lessen the marketability.

Mr. Hubbell used only the sales comparison approach to arrive at the before and after values. He found four (4) comparable properties, including three (3) that were on Route 44 in Poughkeepsie. Analysis, however, in addition to being limited to the direct sales comparison approach, and although the witness testified that he analyzed the lot as a standalone commercial property, did not include credible or complete assessment of the entire lot as residential, or the entire lot as commercial, in the “before” situation, or in the “after” situation.

Viewing the photographs of the subject property from Cherry Hill Drive showing the shale hill with plantings next to the residence [Exhibit 8], Mr. Hubbell opined that even with removal of that shale hill - the way the property is today - the only means of access would be through the commercial end of the property, not through a direct driveway to the residence. This was true because of a “number of factors,” he said, such as the fact that “the traffic stacks up well back to industrial building [on Cherry Hill Drive]; the septic system has to be dealt with; and there is no paved drive from the body shop lot to the house.” After viewing the photographs that he took of cars waiting at the traffic light on Cherry Hill Drive, he agreed that these described traffic conditions at that location between 5:15 and 5:30 p.m. as he observed them in June 2007. [Exhibit 9].

Finally, when asked to explain the meaning of highest and best use through uniform standards for appraisal, Mr. Hubbell said that this means the “most reasonably probable, financially feasible, physically possible and highest economic potential of a property.” He said that he had employed this criteria when making his investigation and report.

On cross-examination, flaws in Mr. Hubbell’s approach were brought out, starting from his conclusion that the highest and best use of this single lot before the driveway closure is as two lots. He agreed that under an R-10 zone - the zoning reversion he had opined would be likely approved in the before situation - quarter-acre lots are allowed. He agreed that this three-acre lot would allow “3 or 4 lots” or more. As a B-H zone for commercial properties, the minimum lot size allowed is 2 acres, thus only one lot would be allowed. Other residential zones, such as R-15 or R-22 would also allow for subdivision, he agreed.

This lot has a single zoning designation, he agreed, although it has two uses: residential and commercial. Mr. Hubbell reiterated that in order to divide those uses into separate pieces of property “you would need to get a zoning change for one, and would need variances for both properties.” At some point, he agreed, the parcel had been zoned for multiple residence. He could not say if this was reflected in the report he wrote. With regard to zoning issues past and present, he did not check zoning maps, instead speaking only to zoning personnel to get his information, or to the claimants. The witness “considered” the site plan created when Mr. Zahurak expanded his business in 1996, but did not include it in the appraisal, nor is it specifically referenced in the appraisal report according to his testimony.

Mr. Hubbell agreed that road frontage shown on the site plan was 72.36 feet, and that all set backs had been measured with the front of the property expressed as abutting Route 44. Side set backs were measured from Cherry Hill Drive, and the common property line to the east. Rear set backs were measured from the town house apartments to the north. For a subdivision proposed by Mr. Zahurak to occur, he conceded, the orientation of the site plan or commercial property would change. The commercial property would no longer be fronted on Route 44 if there were a subdivision. Cherry Hill Drive - a private road - would become the front. Mr. Hubbell conceded that the Town requires that all improved parcels have public-road frontage, thus a variance would likely be required. He agreed it would also create a non-conforming commercial use lot. Although the deed provides for the right of ingress and egress to Cherry Hill Drive, and in his report Mr. Hubbell indicates that the attorney said that the issue of non-town road is amenable to solution under town law, there was no other investigation on Mr. Hubbell’s part, just the notation that he was so “instructed.”

Mr. Hubbell assumed that the front residential lot for this subdivision would be 2.3 acres - although not a surveyed 2.3 acres. He marked where the lot line would occur (as suggested by Mr. Zahurak’s information) on the April 1999 survey. [Exhibit 3]. The line drawn goes through what had been the asphalt drive connecting the residence to the back commercial parking. Asked how far back commercial improvements must be from the nearest residential area, Mr. Hubbell agreed that the minimum amount, measured to the industrial building, would need to be 30 feet. Parking areas for the commercial portion would be 30 feet. He maintained that there are 30 feet between the commercial parking area and residential lot line proposed, saying he had measured it while doing the appraisal. He could not say where that information appeared in his report at first, although he did note that the fact that the existing improvement on the commercial lot will conform to the bulk requirements as to set backs from residential properties appears in a paragraph concerning BH zoning. Specifically, he reported: “The minimum 30[-]foot side and rear yard set-backs requirements are met.” [Exhibit 1, p. 28]. When asked if that was to the new lot line, Mr. Hubbell responded that it applied “wherever the lines are.”

Further testimony showed that Mr. Hubbell appeared to base his subdivision assumptions concerning the adequacy of bulk requirements on the full 3-acre property, not the smaller 2.75- acre parcel - the business end of the proposed lot - that would result, and its conformance with applicable rules. He conceded that either he did not measure the frontage of the proposed commercial lot or that it is not stated in the paragraph.

Mr. Hubbell also could only say that he talked about the requirements for the proposed commercial lot “by implication.” The 22 feet frontage mentioned is from the brick industrial building to Cherry Hill Drive. He agreed that this would be one-half the required depth from the front - requiring variances - although the side setbacks would be adequate.

Mr. Hubbell conceded that there was a viable economic use present as both a commercial and a residential lot, as one three-acre property, or subdivided in some fashion whether it had two or three driveways. With two driveways, he maintained that there was a residential rental use rather than an owner-occupied type use. Nonetheless, Mr. Hubbell did not perform an income approach analysis to either arrive at that conclusion or to his ultimate conclusion that the highest and best use in the “before” situation was selling a subdivided property. He appears to have based this on a general proposition that there is a greater return when one sells two properties, rather than selling one property that contains a residential rental.

He deemed it “unnecessary” to make any analysis of the income stream of either building as a rental, “given our experience with these types of properties in Dutchess [County].” Queried further, he had “no idea” how many split highway properties there were in Dutchess County, nor could he say how many such properties he had dealt with other than to say “many.” More often than not, he said, such split-use properties are owner-occupied.

Later, on redirect examination, he said the income approach was not a reliable indicator when he was viewing the property as an owner-occupied mixed-use property. Buyers would be looking from that perspective. On redirect examination he also said that the cost approach would not be a reliable indicator of value, since such methodology was used primarily for new construction.

Mr. Hubbell was also questioned about the basis for his opinion that traffic concerns on Cherry Hill Drive would prevent useful access to the residential portion. To reach that conclusion, however, he had not done any type of traffic analysis. He did not know what the hourly traffic flow on Cherry Hill Drive was. He did not know the lag period at the light, and, indeed, did not appear familiar with the term. He performed no traffic analysis concerning the relative safety of entering from Cherry Hill Drive versus Route 44. He did not perform any type of hourly traffic count on Route 44. He reached his opinion that it was unsafe to have an additional driveway on Cherry Hill Drive without traffic data and based only upon his own observation that traffic backed up during two visits to the property. He said that weighing the relative safety of driving maneuvers is beyond his area of expertise other than as a driver himself. As an appraiser - “we are generalists - we observe things.”

Later, on redirect examination, he said he used traffic counts “if necessary, like for a strip mall,” saying the traffic count on Route 44 “would not matter the way it would for a strip mall.”

Mr. Hubbell had to concede that although the letter dated September 18, 2002, transmitting his report to claimants’ attorney describes the driveway access as being “appropriated,” no maps were filed, no actual appropriation of claimants’ property had occurred, and no diminishment in size had occurred at all. He agreed that prior to December 1999 the property had value, and that it still does.

No other witnesses testified.
In a case involving the City of Buffalo’s announcement of an intent to condemn properties and the alleged diminution in their value thereafter, the Court of Appeals described what constitutes de facto appropriation, and said “. . . the concept of de facto taking has traditionally been limited to situations involving a direct invasion of the condemnee’s property or a direct legal restraint on its use . . . (citations omitted).” City of Buffalo v J.W. Clement Company, Inc.,28 NY2d 241, 253 (1971). The elements of the cause of action were stated therein, with the Court saying “. . . a de facto taking requires [either] [1] a physical entry by the condemnor, [2] a physical ouster of the owner, [3] a legal interference with the physical use, possession or enjoyment of the property, or [4] a legal interference with the owner’s power of disposition of the property.” City of Buffalo, supra at 255. De facto appropriation has been discussed, too, in the context of distinguishing such a cause of action from one for continuing trespass to determine whether the plaintiff’s claim was barred by res judicata. See e.g. O’Brien v City of Syracuse, 54 NY2d 353 (1981). The Court stated: “De facto appropriation does not involve a proof of title in the governmental defendant. Rather, de facto appropriation, in the context of physical invasion, is based on showing that the government has intruded onto the citizen’s property and interfered with the owner’s property rights to such a degree that the conduct amounts to a constitutional taking requiring the government to purchase the property from the owner . . . (citations omitted).” O’Brien v City of Syracuse, supra at 357.[9]

As an initial matter, the Court finds the case law surrounding so-called regulatory takings, requiring a showing by a claimant that there is no “reasonable return” on his property, less meaningful than those directly discussing whether a de facto taking is the result of some governmental act. While analogies may be drawn, this is not a situation where the enactment of a local law or regulation or its application has significantly affected a private landowner’s property [see Penn Cent. Transp. Co. v City of New York, 42 NY2d 324 (1977), affd 438 US 104 (1978), reh denied 439 US 883 (1978)]1[0], although State action has certainly occurred by virtue of the permitting process and the signalization of an intersection with a State highway. Indeed, in Penn Cent. Transp. Co. v City of New York, supra at 331, the Court recognized that the analysis is circuitous when talking about “reasonable return,” saying “reasonable return . . . is an elusive concept, incapable of easy definition. For the reasonableness of the return must be based on the value of the property, and the value of the property necessarily depends on the return permitted or available . . . ”

To the same effect is the analysis expected here. To determine in part whether there has been a de facto taking resulting from governmental action, consideration of the value of the property at issue and any alleged decrease is necessary.

Thus while defendant argued at trial that consideration of claimants’ expert’s analysis on value should not enter into consideration of liability, the State also argued that in order to demonstrate de facto appropriation by way of regulatory action, the claimant must show that the regulatory action has no relation to the public benefit or that the regulatory action is so onerous to the property owner as to deprive it of substantial economic benefit from its property or to interfere with its power of disposition over the property. While it is fairly obvious that the public benefits as a whole from safety planning for highways, including signalization at the intersections of same, appraisal of the allegedly affected property is clearly relevant to determining whether any interference has been “onerous.” Defendant’s trial objection to claimants’ submission of their expert’s testimony and report [see Exhibit 1], except as it pertains to the limited issue of damages, is, accordingly, denied. It is admitted for all purposes.

Any “right” Claimants have to access to the State highway, is always circumscribed by the paramount State interest in maintaining safe roadways. The right, in any event, is limited to reasonable access to the State highway, not the right to a particular access point. Cities Serv. Oil Co.v City of New York, 5 NY2d 110, rearg denied 5 NY2d 1041, cert denied 360 US 934 (1959). Thus, for example, when New York City placed a bus stop in front of plaintiffs’ gasoline station it did not constitute an unreasonable interference with plaintiffs’ right of ingress or egress. Cities Serv. Oil Co. v City of New York, supra. Although the gas station plaintiffs asserted that their “right” of ingress and egress was a paramount property right, the Court of Appeals rejected that notion, stating that rather than the abutting landowner’s access being the superior property right, it is the municipality, for the benefit of the public at large, that has the paramount right to the use and control of the streets. Cities Serv. Oil Co. v City of New York, supra. The Court said: “To promote and facilitate travel on street and highway, a municipality may, therefore, in the exercise of an unquestioned governmental function, regulate and control traffic and public transportation. Unless arbitrary and capricious, such an act ‘will not be restrained nor will the courts assume the management and control of [the] highways’. . . (citation omitted).” Cities Serv. Oil Co. v City of New York, supra at 115.

Similarly, in Randall v State of New York, 75 AD2d 906 (3d Dept 1980), a property owner who operated a truck and automobile sales business and also maintained his residence on property adjacent to a State service road could not recover damages when the DOT changed the designation of the service road to a one-way street, since there had been no encroachment on his property or destruction of suitability of access. Despite the fact that those desiring entry to his property would now have to travel a circuitous route, this was viewed as an inconvenience that was not compensable. Randall v State of New York, supra at 907.

Bopp v State of New York, 19 NY2d 368, 371 (1967)1[1] - although it involved direct appropriation of a portion of claimants’ property - discusses the idea of access to property. The Court of Appeals said:
“. . . damages resulting from circuity of access to the claimants’ property as well as damages incurred because traffic no longer passes the claimants’ property are not compensable . . .

[W]e wish to make clear what we believe to be the law in this State regarding damages incurred by the owner of property located on a State highway, with unlimited access thereto, when a new highway is constructed which no longer affords the property owner direct access to the State highway but requires travel on a new or old access route to the new highway.

Under these circumstances the owner of the property is not entitled to damages incurred because access is no longer as direct as it once was or because the new or remaining access is less than ideal . . . (citations omitted). Nor are damages recoverable because traffic no longer passes in front of the claimants’ property or because his property is no longer visible to those traveling on the main highway . . . ” Bopp v State of New York, supra at 371- 372. See also Selig v State of New York, 10 NY2d 34 (1961).1[2]

As synthesized in Priestly v State of New York, 23 NY2d 152, 156 (1968), the distinction between what access is merely circuitous versus what is not only circuitous but unsuitable - the latter status rendering the change compensable - is whether the remaining access “. . . is inadequate to the access needs inherent in the highest and best use of the property involved.” Thus in Priestly v State of New York, supra in addition to the direct damages involved in the taking of a portion of Claimants’ 80-acre tract, Claimants were entitled to consequential damages associated with the unsuitability of access to the parcel associated with its highest and best use as a residential development, as established by expert testimony.

Chemung Canal Trust Co. v State of New York, 90 AD2d 889 (3d Dept 1982), involving the State’s appropriation of one of three streets surrounding Claimant’s property, from which Claimant operated a six-story bank and office building containing two drive-in teller structures, is clearly directly on point here, although its procedural posture was resolution of a dispositive motion. In that case, Claimant sought consequential damages based upon its loss of access to the street that allowed clients entry to one side of the drive-in teller structures. The State’s motion to dismiss the claim was denied because Claimant submitted its president’s affidavit indicating that in order to be competitive, commercial banks required drive-in facilities, and giving further detail as to how access to the remaining streets “. . . was not merely inconvenient but unfeasible for use of claimant’s drive-in teller facilities, and further stat[ing] that after the taking, the bank had to acquire additional property and make extensive improvements in order to continue its drive-in teller services.” Chemung Canal Trust Co. v State of New York, supra at 890. The Court said: “Such evidence could support a finding that the highest and best use of claimant’s property was as a bank with drive-in teller facilities and that the access remaining after the taking of State Street was unsuitable. . . . id. (citations omitted).” C.f. La Briola v State of New York, 36 NY2d 328 (1975).1[3] For these purposes, whatever the State action is called, the alleged diminution in value of the subject property is in question. See Penn. Coal Co. v Mahon, 260 US 393 (1922).

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimants have failed to establish that defendant’s closure of the existing driveway access to State Route 44, necessitated by the public safety concerns attendant upon signalization of the intersection of Route 44 and Cherry Hill Drive, resulted in a compensable de facto appropriation of their property.

Mr. Zahurak’s testimony concerning his plans for the property - inchoate at the time of the driveway closure - is not credited. The development of the property across the street from claimants’ was evolving as early as 1998, according to the evidence, and the immediate area would clearly be impacted by such change. In the face of the obvious changes, and Mr. Zahurak’s focus on the commercial development of his property, the “plan” is suspect. Claimants’ property was not the only one affected by the installation of a traffic signal. Others lost direct access onto Route 44. Moreover, there was no acceptance on his part of the alternative access offered, the cost for which was to be assumed by the developer and, later, there was no attempt on his part to obtain driveway access to Route 44 or additional access to the property from Cherry Hill Drive. As conceded during the trial, Mr. Zahurak controls how the property is improved, within whatever constraints local and State government imposes.

Claimants continue to use the land the way they did prior to closure of the driveway. There has been no change in use, and thus no interference with their rights in the parcel as a whole resulting from the governmental action. The property continues to have 72 feet of frontage on Route 44, only a portion of which is affected by the 30-foot regulatory limitation vis-
the traffic signal. Moreover, claimants have over 800 feet of frontage on Cherry Hill Drive, allowing for additional driveways.

Had claimants’ appraiser presented a better grounded analysis of the value of claimants’ property, the absence of any rebuttal by the State would be a concern. Here, however, the bases for the appraiser’s opinions are flawed, rendering the conclusions drawn suspect. For example, when Mr. Hubbell explained why he chose to use only a sales comparison approach to value, he said that an income approach for an owner-occupied mixed-use property is not a reliable indicator, nor would a cost approach be a reliable indicator of value since same is generally used for new construction. This explanation is not satisfactory as to why alternative methods for appraising real estate supposedly devalued by State action were not used. As used by claimants, the property was not an owner-occupied parcel and was used as a rental, yet no income stream analysis was made. There was new development all around this property, yet no analysis of the cost of developing this piece was made. This does not make sense.

Mr. Hubbell’s determination that the highest and best use of the property prior to the closure of the driveway was to subdivide it appears to be more informed by Mr. Zahurak’s alleged desire to make that change than an independent assessment of the highest and best use. When probed, it was manifest that Mr. Hubbell had limited his considerations substantially, driven perhaps by the suggestions of his clients. He assumed that all zoning changes and variances needed to create separate residential and commercial lots would be obtained without any substantial investigation. He did not analyze the market value of the property as a whole or as raw acreage, and did not include any costs for the suggested partition. He did not consider the efficacy of a different type of subdivision - or none at all for that matter - or the fact that Route 44 was a busy State highway and that the location might not necessarily invite a single-family residence in the first place, an observation that does not even require an expert’s view. The description of the traffic conditions on Cherry Hill Drive, and the use of photographs taken at a time when cars would be in great number - namely between 5:00 p.m. and 5:30 p.m. - picking up items from the store, returning to town homes, leaving work in the plaza, does not persuade the court that a residential driveway on Route 44 would be better and in the interest of public safety [see 17 NYCRR §125.5(b)],1[4] or that the quite substantial access to the property as a whole already extant on claimants’ property is insufficient.

Premised, as it is, on the initial assumption that the highest and best use was to create separate parcels constrained by zoning issues, the finding that there has been a monetary loss occasioned by the supposed change is an artificial construct.

Ultimately, Mr. Hubbell could only say that the property continued to have economic utility and the owners could expect a reasonable economic return. Finding that there was a substantial value before and after the closure of the driveway works against a finding that there has been any compensable taking. This is not the onerous interference with a private citizen’s property by governmental action that might result in a finding that there has been a de facto taking.

Accordingly, claimants have failed to establish their claim. Defendant’s motion to dismiss, upon which decision was reserved at trial, is hereby granted, and Claim Number 105941 is in all respects dismissed. All trial motions not otherwise disposed of are hereby denied.

Let judgment be entered accordingly.

October 11, 2007
White Plains, New York

Judge of the Court of Claims

[1].17 NYCRR §125.5(b); see generally Vehicle and Traffic Law §1680; 17 NYCRR Chapter V, Uniform Traffic Control Devices.
[2].The State may by permit allow private parties to erect a traffic signal at an entrance to private property. See Vehicle and Traffic Law §1681. With regard to deficiencies in the permitting process, the Claimants’ exclusive remedy based on such assertions would have been a special proceeding brought in New York State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules.
[3]. Subsequent cross-motions for summary judgment were denied. [See Zahurak v State of New York, UID # 2006-030-586, Claim No. 105941, Motion Nos. M-72148, CM-72271 (filed Jan. 22, 2007, Scuccimarra, J.].
[4]. The DOT advised that “. . . the signalization of Route 44 and Cherry Hill Drive was activated last Friday on December 3rd. . . . Although the Department had approved the closing of the driveway under the terms of the Highway Work Permit (HWP) issued to Ameribrit, the developer had agreed to construct a replacement access either on Route 44 or Cherry Hill Drive, subject to your approval. To this date you have rejected this solution. Based on highway safety concerns and the responsibility of the Department to protect all users of our facilities, this letter shall constitute notice that the driveway will be permanently closed on or about December 15, 1999. Therefore, if the driveway relocation matter is not resolved by that date, the current HWP will be amended to eliminate the driveway’s closure and that burden will be shifted to the Department. Thereafter, any request for replacement access to Route 44 will require a new Permit which would be issued to the respective property owner . . . ” [Exhibit 5].
[5]. All quotations are to trial notes or audiorecordings unless otherwise indicated.
[6]. That is, in addition to the two commercial driveways already providing access to the property.
[7]. Mr. Zahurak said he removed the garage and paving without permission from the Town or formal alteration of the site plan after 1999 when he upgraded the electric and water, replaced the plastic pipe septic system and removed the shale hill.

[8]. “(g) identify any extraordinary assumptions necessary in the assignment . . .

Comment: An extraordinary assumption may be used in an assignment only if:

- it is required to properly develop credible opinions and conclusions;

- the appraiser has a reasonable basis for the extraordinary assumption;

- use of the extraordinary assumption results in a credible analysis; and
- the appraiser complies with the disclosure requirements set forth in USPAP for extraordinary assumptions.” [Exhibit 6].
[9].“[It] may be characterized as an aggravated form of trespass. The pertinent evidence in both actions is the same. The basic distinction lies in the egregiousness of the trespass and whether it is of such intensity as to amount to a taking.” O”Brien v City of Syracuse, supra at 357.
1[0]. The plaintiff, owner of Grand Central Terminal, was denied approval to construct a 50-story office building over the terminal by the New York City Landmarks Preservation Commission, in an application of the landmarks preservation law of the Administrative Code of the City of New York. The Court of Appeals found that the plaintiff failed to establish that the government, by regulation, deprived it of all reasonable return on the property. The Court drew distinctions between landmark regulation and other types of government-imposed burdens, including eminent domain and zoning. Read in context, the discussion of the plaintiff’s burden to show lack of any reasonable return is specific to landmark regulation and an owner’s “cross” in bearing the landmark designation on property it owns.
[1]1. This case involved a direct appropriation of a small portion of Claimants’ property. That portion of the award ascribable to alleged inadequacy of access caused by a highway reconstruction was reduced by the Appellate Division, whose determination was affirmed by the Court of Appeals. Claimants’ property was no longer visible from the new Route 28. Claimants could not profitably continue the operation of the motel-lodge and restaurant, and the property’s use was changed to a summer residence, except during the ski season when overflow clients from lodges nearby could stay. Although the Court of Claims found that the highest and best use had been reduced, the appellate courts disagreed.
1[2]. In Selig v State of New York, supra, as a result of construction of the New York State Thruway, Claimant’s frontage along Central Park Avenue in Yonkers, containing 4 stores, apartment buildings, and garages for tenants, changed so that the grade of the Thruway - that replaced the center part of Central Park Avenue - was much higher than that of the remaining avenue in front of Claimant’s property, and it was no longer possible to directly cross Central Park Avenue. Service roads allowed Thruway crossing, however vehicles traveling north on Central Park Avenue, for example, no longer had direct access to Claimant’s property, but needed to cross over at one of the service roads approximately 10 blocks further north, or 8 blocks to the south. In saying that any loss of direct access was not compensable, the Court of Appeals noted that Claimant “. . . had free and uninterrupted access to Central Park Avenue South, 27 feet wide, which concededly remained at grade, as well as to . . . [crossing service roads]. Under the authorities, then, there was no change of grade as to her property, and claimant had no right, vested or otherwise, to abut upon a 100-foot-wide highway, nor to the continued passage of a heavy volume of traffic.” Selig v State of New York, supra at 41. See also Meloon Bronze Foundry v State of New York, 10 AD2d 905 (4th Dept 1960)(change of grade crossing).
1[3].Claimant not entitled to consequential damages for loss of traffic flow resulting from highway relocation. Although highest and best use changed from commercial to industrial, where there is sufficient access for the changed use, not compensable.
1[4]. “In and of the interests of public safety and convenience, the department may restrict the placement of a driveway to a particular location along the owner’s frontage or require shifting of an existing driveway.”