Matter of City of New York

[*1] Matter of City of New York 2005 NY Slip Op 50192(U) Decided on February 18, 2005 Supreme Court, Kings County Gerges, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 18, 2005
Supreme Court, Kings County

In the Matter of the Application of the City of New York relative to acquiring title in fee simple, where not heretofore acquired for the Chapin Addition to Reed's Basket Willow Swamp Park.



4007/04

Abraham G. Gerges, J.

The City of New York (the City) moves for an order: (1) permitting it to file an amended damage and acquisition map for the Chapin Addition to Reed's Basket Willow Swamp Park, bearing revisions dated September 24, 2004, so that the body of water sometimes referred to as Chapin Pond is depicted within the properties shown at damage parcels 8, 9 and 10 (the Revised Map), and (2) providing that the amended damage and acquisition map shall be used when valuing said damages parcels.

Facts and Procedural Background

By notice of application to condemn and petition in this proceeding, the City described the property that it intended to acquire as Block 865, part of Lot 1 and Lots 200, 378, 382, 387, 414, 428, 433, 436 and 452 in Staten Island. Said petition included a damage and acquisition map dated January 30, 2004 (the January 2004 Map), which does not depict Chapin Pond, which lies predominantly on Block 865, Lot 433, but overlaps onto Lots 428 and 436. On April 16, 2004, this court granted the City's petition and the order of [*2]condemnation was filed on April 20, 2004 in the office of the Clerk of the County of Richmond, thereby vesting title in the City of New York.

The City alleges that subsequent to the vesting, it discovered that the January 2004 Map was incomplete in that the pond located on the subject property was inadvertently omitted by the surveyors when the map was finalized. Claimants declined to consent to the filing of the Revised Map and this motion followed; a copy of said map is annexed to the moving papers.

The Parties' Contentions

In support of its motion, the City argues that the existence of the pond is documented as early as 1908, when it appeared on the Borough of Richmond Topographical Survey of July 1908.[FN1] To further support its contention, the City relies upon an affidavit from Jane Cleaver, Chief of Parklands, Department of Parks and Recreation (Parks), in which she alleges that Chapin Pond has existed on the subject property for many years. In addressing the project at issue herein, Cleaver explains that commencing in 1998, City Councilmember Jerome O'Donovan expressed an interest in preserving "an aquatic feature" at the location. Cleaver also refers to a memorandum dated June 2, 1997 from Bradford M. Greene, a registered landscape architect, to the Councilmember, in which he refers to the pond and opines that it is fed by springs, as there is no obvious creek or stream leading into it, and that it is not a product of recent land disturbance within the past 10 to 15 years. Cleaver further alleges that in the summer of 1998, she went to the site and observed the kettle pond, i.e. a pond carved out by glacial activity; photographs that she took on that day are annexed to the moving papers. Because the pond supports wildlife including migratory birds, ducks and herons, as well as abundant vegetation, Parks initiated the procedure to acquire the land for use as an addition to Reed's Basket Willow Swamp Wildlife Refuge.

Cleaver further asserts that the existence of the pond was noted throughout the approval process for the park. For example, the maps of the property that were prepared by Parks during 1998 and finalized in October 2000 and February 2001 clearly depicted the pond; a map dated January 31, 2001 and prepared by Wohl & O'Mara, civil engineers and land surveyors, also depicted the pond. In addition, during the Uniform Land Use Review Procedure, it was noted that Councilmember O'Donovan was working to preserve an aquatic feature on the property, i.e. the glacial pond. Finally, Cleaver notes that when the Deputy Mayor approved the acquisition of the property, he referred to it as the "Chapin Pond Addition."

The City also relies upon an affidavit from Kirsti Jutila, Deputy Director, Staten Island Borough Office, Department of City Planning (Planning), in which she alleges that the pond has been in existence for decades and was acknowledged by a former owner as an aquatic feature pursuant to New York City Zoning Resolution § 105 -11. More specifically, in [*3]seeking to develop the subject property in 1995 and again in 2003, Tommy Chiu filed applications which referred to a body of water on the property. In addition, the City argues that in order to accurately value the subject property, it is necessary to accurately depict the pond on the damage and acquisition map.

Claimants oppose this motion, arguing that the City fails to offer affidavits from the surveyors to explain their error in omitting the pond on the January 2004 Map. Further, that map contains a certification stating that "there are no visible streams or visible natural water courses across the property as shown on this survey;" claimants opine that it is difficult to understand how a pond that is said to be over 100 feet long could be omitted from the map.

Moreover, claimants do not acknowledge the existence of a pond on the subject property. Rather, in response to the Land Use Application filed by the City, the owners' architect filed a response in which he noted that the topography of the property "has caused water to be trapped on the site. The area of this surface water is less than 2, 700 square feet." In addition, a landscape architect prepared a report dated August 22, 1996 which noted that the site was flooded to a small degree,"by trapped surface water, possibly due to the topographic modifications associated with the adjacent development," so that the trapped water is not a pond.

Claimants also contend that the letter from O'Donovan and the affidavits of Cleaver and Jutila do not establish that a pond exists on the subject property, since none of these people is an expert who can offer such an opinion. Rather, the letter and affidavits establish only that surface water was found on the property from time to time. Also significant is the absence of proof establishing that the pond is spring fed, as is claimed by the City. Claimants hence conclude that the City should be bound by the January 2004 Map, which was updated on September 24, 2004, after title vested in the City, and which still failed to indicate the presence of a pond. Accordingly, the court should conclude that the surface water is the result of changes made to the property after title vested, since that is the date on which claimants' rights in the property were fixed.

In reply, the City offers the affidavit of Vincent E. Zakrzewski, a licensed New York State surveyor and the Director of Site Engineering in the Topographical Section of the Department of Design and Construction (DDC). Therein, Zakrzewski explains that when the field crew surveyed Block 865, Lots 428, 433 and 436 in January 2004, they noted the presence of the pond in their notes, but on a separate sheet of paper; that sheet of paper was apparently misplaced and was not included in the other field notes when the January 2004 Map was prepared. Zakrewski also alleges that the DDC was in possession of a map dated April 12, 1994, amended September 13, 1995, which depicted the pond on the subject property.

The Law

As a threshold matter, it is well established that the right of eminent domain is a purely legislative prerogative which can only be exercised pursuant to legislative authority (see e.g. Buholtz v Rochester Tel., 40 AD2d 283, 286 [1973], appeal dismissed 33 NY2d 939 [*4][1974]). Further, the power to condemn, or to take private property without the owner's consent, must be strictly construed and must be exercised in strict conformity with the terms of the statute conferring the right (Central Hudson Gas & Electric v Morgenthau, 234 App Div 530, 533 [1932], affd 259 NY 569 [1932], citing Matter of Water Commissioners of Amsterdam, 96 NY 351, 357 [1884]; Schneider v City of Rochester, 160 NY 165, 172 [1899]; County of Jefferson v Horbiger, 229 App Div 381, 383 [1930]). It is equally well established that in a condemnation proceeding, "[t]here must be no uncertainty in the description of the property to be taken, nor in the degree of interest to be acquired" (Matter of Water Commissioners of Amsterdam, 96 NY at 361; City of Plattsburg v Kellogg, 254 App Div 455, 457 [1938]).

Also relevant is the basic tenet that the amount of damages to which a landowner is entitled as the result of an appropriation is measured and fixed at the time of the taking (see e.g. Kravec v State of New York, 40 NY2d 1060 [1976]; Chester Litho v Palisades Interstate Park Comm., 27 NY2d 323, 325 [1971]; Wolfe v State of New York, 22 NY2d 292, 295-297 [1968]). Thus, "subsequent remedial measures attempted by the condemnee, such as offering a right of access after the fact or otherwise limiting its original appropriation after the original taking, do not operate to reduce its damages" (In re Acquisition of Real Property by County of Schenectady, 194 AD2d 1004, 1006 [1993], appeal denied 83 NY2d 756 [1994], appeal denied 84 NY2d 806 [1994], citing Wolfe, id. at 295-297 [the State was not permitted to remedy a denial of access after the Court of Claims found the original access provided by the State to be unsuitable]; B & B Food v State of New York, 96 AD2d 893 [1983] [court correctly refused to limit damages, as proposed by the State, based upon the claimant's failure to accept a deed to a parcel of land contiguous to the subject property, which deed was offered to the claimant by the State subsequent to the appropriation of its property]).

In addressing the issue of whether a map filed in a condemnation proceeding may be amended in a proceeding which involved the acquisition of land for the Catskill aqueduct, In re Catskill Aqueduct (152 App Div 503 [1912]), the trial court allowed the petition and maps to be amended during the proceeding to allow for two different rights of way over the subject land to be substituted, which thereby lessened the compensation that was due to the claimant on the date that title passed. In reversing the lower court's decision, the Appellate Division, Second Department held that there was no power to grant the amendment, stating that: "The city took with reservation of easements. Thereupon it owed the claimant compensation. It dictated the purchase, and cannot undo it in any degree, nor by shifting, or resubstituting, or reproviding ways can it discharge in the least what it owes. Why then should its engineer attempt it, or the court interpose maybe to subtract something from the debt, by creating new easements? The order does not amend a defect, or informality, [*5]as permitted by statute. (Laws of 1905, chap. 724, § 23.) It recasts a conveyance and bargains anew."

(id. at 505).

Also, in the unreported case of In Re Lemon Creek/Sandy Brook Staten Island Bluebelt System (Kings County Supreme Court, Index No. 2760/95, Scholnick, J.), the court held that the City would not be permitted to file an amended damage and acquisition map dated approximately six years after the original damage and acquisition map was filed to reflect wetlands as mapped by the Department of Environmental Conservation, which the City argued was necessary to give the appraisers a more accurate view of the property. In denying the motion, the court noted that the City failed "to satisfactorily explain the delay and the need to file that amended map at this time" (id., transcript, May 10, 2001, p 18).

Cases which address the issue of amending a petition in a condemnation proceeding are also instructive in view of the paucity of cases concerning the amendment of the map. For example, in the case of In re Application of New York & W. S. R. Co. (89 NY 453 [1882]), proceedings in which a railroad corporation sought to acquire title to lands under the water of the Hudson River, which had been granted by the State to the owners of the uplands, the petition contained an offer on the part of the company to construct a draw-bridge to give access from the river to the docks of the land-owners. After an order had been made and appealed from, on application of the company, an order was granted giving it leave to withdraw the offer and to amend the petition accordingly. In addressing the issue, the court held that it had no power to so amend the petition, since no such power was given by the provision of the General Railroad Act (§ 20, chap. 140, Laws of 1850), which authorizes the correction of "any defect or informality," and the amendment sought therein could not be so characterized.

Similarly, in the case of Consolidated Gas Supply Corp. v Reilly (68 AD2d 953, 954 [1979]), the court denied leave to amend the petition where a proposed amendment would specifically reserve to the owners the right to construct roads across a 60-foot wide easement, provided that the roads did not interfere with the use of the natural gas pipeline for which the land was sought. Therein, the court found that it had no jurisdiction to modify the order of condemnation, since the Condemnation Law required the petition to contain a specific description of the property to be condemned, so that there is no uncertainty in the description of the property to be taken, nor in the degree of interest to be acquired (id. at 954, citing Matter of Water Comrs. of Amsterdam, 96 NY at 361). Accordingly, since the proposed amendment would change the description of the property to be taken and the interest acquired, leave to amend was properly denied.

Discussion

In addressing the issue presented herein, it must first be noted that the proposed amendment cannot be characterized as one seeking to correct a defect or informality, since it seeks to introduce the presence of a pond of significant size. Similarly, the amendment [*6]sought does not alter the metes and bounds description of the property taken by the City, since neither party contends that the amended damage and acquisition map would alter the boundaries of the damage parcels. Rather, as made clear by both parties in their papers and during oral argument, the dispute concerns the value to be placed upon the property, it being self evident that property under water is less valuable than property that can be improved. In this regard, the court also notes that during oral argument, claimants represented that in the event that the motion is denied, they do not intend to argue at trial that the City cannot testify with reference to the presence of water on the damage parcels because the map does not so indicate.

Turning to the merits, the court also notes that the City points to no statutory authority or case law precedent that would allow it to amend the damage and acquisition map after title to the property at issue in the proceeding has vested in the condemnor. Applying the principles of the above discussed cases to the facts herein, the court is constrained to apply the Eminent Domain Proceeding Law in strict conformity with the terms of the statute. Thus, inasmuch as the statute provides no authority that would allow the City to amend the damage and acquisition map after title has vested, its motion must be denied on this ground alone.

In the alternative, although none of the above discussed cases were decided upon facts substantially similar to those now at issue, the rationale upon which those decisions were premised is instructive. In this regard, the basic principle to be discerned is that a condemnor may not seek to amend its taking in such a way as to limit its damages. Indeed, the court so stated in Wolfe: "we concern ourselves only with the question posed thereby, namely, whether the State may change the terms of the appropriation, or modify its original taking, by filing a correction map or adopting some other procedural device, so as to mitigate the consequences to the owner and reduce the compensable damages to be paid. The answer to the question must be in the negative. The amount of damages to which the claimant is entitled as the result of an appropriation is to be measured and fixed as of the time of the taking."

(Wolfe, 22 NY2d at 295 [1968]). Herein, the City is seeking leave to amend the damage and acquisition map for the precise purpose of reducing the amount of compensation to which claimant is entitled by establishing that a portion of the damage parcels is land under water. Such result will not be permitted.

In so holding, it is also noted that although the City claims that water on the damage parcels is a glacial pond fed by a spring, they fail to lay any foundation upon which the court may find that the persons so concluding have the necessary expertise to render such an opinion. In addition, inasmuch as claimants have represented that they will not seek to preclude the City from introducing evidence of the presence of water on the property at trial, [*7]since claimants themselves assert that water has been present on the site from time to time, the court will be able to value the property as encumbered by the water. From this it follows that the City has also failed to demonstrate a need to amend the damage and acquisition map.

Conclusion

Accordingly, for the above stated reasons, the City's motion to file an amended damage and acquisition map is denied.

The foregoing constitutes the order and decision of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1: During oral argument, counsel for the City acknowledged that the 1908 map showed a much larger swamp covering several lots that allegedly shrunk down to Chapin Pond over the years.