Roskopf v State of New York

[*1] Roskopf v State of New York 2009 NY Slip Op 51618(U) [24 Misc 3d 1225(A)] Decided on June 18, 2009 Ct Cl, Erie County Moriarty, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2009
Ct Cl, Erie County

Robert B. Roskopf, Claimant,

against

State of New York, Defendant.



111137



APPEARANCES: For Claimant:

Wolfgang and Weinmann

By:Michael G. Wolfgang, Esq.

For Defendant:

Hon. Andrew M. Cuomo

New York State Attorney General

By:William D. Lonergan

Jeremiah J. Moriarty, J.

This is a timely filed claim for damages caused by the partial appropriation of Claimant's property pursuant to Section 30 of the Highway Law and the Eminent Domain Procedure Law of the State of New York in a proceeding entitled "City of Lockport: Prospect Street, P.I.N. 5940.40, Niagara County, Map No. 6, Parcel No. 7," filed in the Niagara County Clerk's Office on July 24, 2002, which the Court finds to be the date of taking. Said map and the property description set forth therein are adopted by the Court and incorporated herein by reference. This Claim was filed with the Clerk of the Court on July 15, 2005 and it has not been assigned or submitted to any other court, tribunal or officer for audit or determination. The Court has viewed the property pursuant to Section 12(4) of the Court of Claims Act and Section 510 of the Eminent Domain Procedure Law.

The subject property is located at the northeast corner of West High Street and State Road in the City of Lockport, Niagara County, New York, and is more particularly described in a deed to Claimant, Robert B. Roskopf, dated October 12, 2000 and recorded October 20, 2000 in the Niagara County Clerk's Office in Liber 3065 of Deeds at page 28. Ownership was not contested and both appraisers valued the property on the basis of Claimant's ownership of a fee interest in the subject premises. Thus, the Court concludes that Claimant has established title to and was the owner of the property at the time of the appropriation.

The appraisers differed markedly as to the dimensions of the land area before the appropriation. Claimant's appraiser, Gregory C. Klauk, described the original parcel as comprising approximately 20,000 square feet (0.46 acre) based on a survey of the property dated October 20, 1989, which indicated a land area of 19,904 square feet and the local assessor's records indicating an area of 20,908 square feet. The dimensions set forth in Claimant's deed comport with those contained in the 1989 survey, to wit, 245.94 feet of frontage on State Road and 158.63 feet of frontage on West High Street. By contrast, Defendant's appraiser, Roger P. Pigeon, reported 293.63 feet of frontage on West High Street, resulting in a parcel containing 41,518 square feet (0.953 acre). [*2]The reason for this discrepancy is that Mr. Pigeon included a contiguous parcel of vacant land owned by Claimant which adjoins the subject premises on the east. Since the vacant lot is not utilized in conjunction with the subject property and the taking area is part of the premises described in the 2000 conveyance to Claimant as shown on the 1989 survey, the Court will adopt the land area dimensions relied upon by Claimant's appraiser.

At the time of the taking the subject property was irregular in shape, generally level with State Road and slightly below the grade of West High Street, and improved by a one-story masonry office/light manufacturing/warehouse building with a partial basement. Both appraisers reported that the majority of the building is devoted to shop space/storage with the remainder devoted to office space and a rest room. The office portion of the building was originally constructed as an automobile service station in the 1930's and the warehouse and manufacturing additions were built in the 1960's and 1970's. Claimant's appraiser determined that the building contains approximately 5,349 square feet of space, while Defendant's appraiser described it as containing 5,315 square feet, though the reason for the discrepancy was not explained. The Court concurs with and adopts the dimensions relied upon by Claimant. Other land improvements prior to the taking included an asphalt paved driveway/parking area along the front, east and north sides of the building and a free-standing sign post. The parties agreed the property was zoned B5-Business District under the City of Lockport zoning law. At the time of taking, the property was assessed at $68,000.00, with $25,200.00 apportioned to land and $42,800.00 to improvements. The equalization rate for the City of Lockport in 2002 was 100%.

The parties also agreed that the taking consisted of approximately 771 square feet of paved area located in the extreme southwest corner of the property, at the intersection of West High Street and State Road. The appropriated parcel was triangular in shape with 60 feet of frontage on State Road and 48 feet of frontage on West High Street. The parties agreed that no building improvements were located in the area of the taking, although the setback of the building from the corner of the intersecting streets was reduced by the amount of the taking. Thus, after the taking, Claimant's appraiser determined that the land area was approximately 19,229 square feet (0.441 acre) and, further, that the remaining parcel retained 185.94 feet of frontage along State Road and 110.63 feet of frontage along West High Street.

A condemnee is entitled to "just compensation" when the State exercises its power of eminent domain and the amount is generally determined by reference to the fair market value of the property according to its highest and best use (Matter of Town of Islip [Mascioli], 49 NY2d 354 [1980]). In determining fair market value, "the condemnee is entitled to have the appraisal based on the highest and best available use of the property irrespective of whether he is so using it" (Keator v State of New York, 23 NY2d 337, 339 [1968]). Where the State takes part of a condemnee's property and leaves a remainder, just compensation includes not only direct damages for the portion taken, but also any indirect damages resulting from impairment to the remaining property as a result of the appropriation. Such indirect impairment can be in the form of consequential damages (damage resulting from the use to which the appropriated portion is put; see e.g. Matter of City of New York (Metro Inv. & Credit Corp.), 288 NY 75 [1942]; Dennison v State of New York, 48 Misc 2d 778 [1965], affd 28 AD2d 28 [1967], affd 22 NY2d 409 [1968]) or severance damages (damage resulting from the effects of the loss of the taken portion; see e.g. Coldiron Fuel Ctr., Ltd. v State of New York, 8 AD3d 779 [2004]). The measure of damages in the case of a partial taking is the difference [*3]between the fair market value of the property before the appropriation and its fair market value after the taking (McDonald v State of New York, 42 NY2d 900 [1977]; Acme Theatres v State of New York, 26 NY2d 385 [1970]; Diocese of Buffalo v State of New York, 24 NY2d 320 [1969]).

Both appraisers agree, in substance, and the Court concludes that the highest and best use of the subject property, both in a vacant and an improved condition, and both before and after the appropriation, was for its continued use as an office, light manufacturing and warehouse facility.

The best evidence of value is a recent sale of the subject property in an arms-length transaction. Absent such evidence, however, courts typically have accepted three approaches to determine the value of real estate: (1) the cost approach; (2) the income capitalization approach; and (3) the sales comparison approach, with the third method being the generally preferred option (Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356 [1992]).

Both appraisers relied primarily on the sales comparison approach to value in reaching their damage figures. However, Claimant's appraiser also used the cost approach to value as a check on his sales comparison values and Defendant's appraiser utilized the income capitalization approach for the same purpose. Although the Court has examined the cost approach and income capitalization approach to valuation proffered by the experts, it has relied primarily on the sales comparison approach to value of the land as vacant, and as improved, as the best indication of value in both the before and after situations.

In determining the value of Claimant's property as vacant land before the taking, Mr. Klauk used four and Mr. Pigeon used three comparable sales. One of the comparable sales was common to each appraisal. The methodology of both appraisers and their adjustment factors in establishing the before land value appear to be reasonable and logical. Mr. Klauk placed a value of $32,000.00 upon the entire parcel based on a vacant land value of $1.60 per square foot (20,000 square feet x $1.60 per square foot). Mr. Pigeon valued the subject parcel as vacant land at $27,000.00, based upon $0.65 per square foot for the 41,518 square feet of land area utilized in his appraisal. Given the relatively minor difference between the square-foot valuations arrived at by the two appraisers, the Court finds it unnecessary to engage in an exhaustive discussion of the comparable sales offered by the appraisers. Overall, based upon a preponderance of the evidence and the Court's consideration of the comparable sales offered by each party, the Court elects to adopt a mean value of $1.45 per square foot for the vacant land value before the taking resulting in a total value of $29,000.00 for 20,000 square feet of land area.

For the improved land sales analysis in the before situation, both appraisers utilized comparable sales and one of the sales was common to each appraisal. Claimant's appraiser concluded the subject property had a value before the taking of $160,500.00. Utilizing the cost approach to value as a check on the sales comparison method, Claimant's appraiser estimated the value to be $157,400.00 and, balancing the two, found the final before market value to be $160,000.00, or $29.90 per square foot of gross building area, including land. Defendant's appraiser, by contrast, concluded that the subject property had a before value of $128,000.00. As indicated above, he utilized the income capitalization approach as a check on the sales comparison method which resulted in a value of $133,200.00, leading him to conclude that the before market value was $130,000.00, or $24.30 per square foot of gross building area, including land. The Court has considered the comparable sales offered by the appraisers, the adjustments they made to the sale price in each case, their reasons for doing so, and the resulting adjusted sales prices that informed [*4]their opinions concerning the value of the subject property. Based upon a preponderance of the evidence, the Court elects to adopt a mean value of $144,500.00 for the value of the subject property, as improved, in the before situation.

The appraisers made an allocation between amounts attributable to improvements to the land itself (e.g. paving, lawn, landscaping, etc.), as opposed to the building that also enhanced the value of Claimant's property. In the former category, Mr. Klauk assigned a depreciated value of $13,200.00 to the land improvements, while Mr. Pigeon allocated a value of $15,000.00. Interestingly, both appraisers appear to have assigned a depreciated value of $1.00 per square foot to the paving. In any event, the Court assigns a mean value of $14,000.00 to the land improvements before the taking, including a value of $1.00 per square foot for the paving.

Therefore, the Court finds that the fair market value of Claimant's property before the appropriation was $144,500.00 (R) ($27.00 per square foot x 5,349 square feet). Of that amount, $29,000.00 ($1.45 x 20,000 square feet) is attributable to the value of the land, $14,000.00 to the land improvements, and the remaining $101,500.00 is attributable to the building improvements.

With respect to direct damages, the total square footage appropriated was 771 square feet. The Court has assigned a valuation of $1.45 per square foot to the land and thus finds the direct damage as a result of the taking equals $1,117.95 (771 square feet x $1.45 per square foot). Additionally, both appraisers agree that the appropriated parcel in the front portion of Claimant's property was improved by asphalt paving valued at $1.00 per square foot. As such, the Court finds that the damage to the paved area resulted in a loss of $771.00 (771 square feet x $1.00 per square foot). Consequently, the total direct damages suffered by Claimant as a result of the appropriation are $1900.00 (R).

Next, the Court must determine if there was any indirect damage to the remainder of Claimant's property as a result of the appropriation and, in this instance, both appraisers agree that some degree of consequential damage resulted from the taking.

In arriving at his estimate of after value, Claimant's appraiser observed that the taking raised the level of West High Street in front of the building leaving the southerly portion of the property below grade and causing surface water to migrate into the building. He also determined that the taking resulted in the loss of four parking spaces in front of the building and reduced accessibility to the remaining property during winter weather driving conditions. Finally, Claimant's appraiser found (which was confirmed by Claimant's testimony) that during construction the front entrance to the office portion of the building was closed off for approximately one year resulting in a temporary loss of rental income.

In reaching his conclusions regarding after value, the State's appraiser concluded that the water seepage into the basement of the office building partially resulted from the taking which adversely affects the value of the building. However, he opines that any loss of parking is not compensable as indirect or consequential damages because parking in the taking area was illegal under local zoning regulations and there is adequate on-site parking on the remaining parcel. To support this position, Defendant offered the testimony of James McCann, Chief Building Inspector and Zoning Officer for the City of Lockport, who indicated that parking in the appropriated area was not permitted under the City zoning law, although he conceded that there had been no attempt by the City to restrict parking in front of Claimant's building.

Based upon the evidence presented at trial, the Court is satisfied that the appropriation raised [*5]the grade of West High Street leaving the southerly portion of Claimant's property substantially below grade. The Court is also satisfied that this increased grade results in surface water occasionally seeping into the basement of the office building which is compensable as an item of indirect damage. The change of grade may also hinder accessibility to the subject property from West High Street during winter weather conditions, however the Court does not find that to be a compensable item. While the owner of property abutting a public highway generally has a compensable right of access, it is not absolute (Raj v State of New York, 124 AD2d 426 [1986]). The issue is whether the taking resulted in a loss of suitable access detracting from the highest and best use of the property (see 224 Troup Realty, Inc. v State of New York, 88 AD2d 773 [1982]). In this case, access to Claimant's property remains essentially as it was. Access has not been rendered ". . . 'remote and circuitous' . . . ." by the taking (Star Plaza v State of New York, 79 AD2d 746, 747 [1980]). Accordingly, this is not a compensable item.

With respect to the loss of parking spaces, the Court concludes that, legal or not, parking in front of the office building was a matter of practice prior to the appropriation and is not available after the taking. However, Claimant failed to demonstrate that there would be inadequate on-site parking for the remaining parcel after the taking rendering any such loss not compensable (Bay Islip Assoc. v State of New York, 27 AD3d 407 [2006]).

In the after situation, both appraisers used the same comparable sales that were used for the before taking analysis. They each made further adjustments to those sales to reflect changed circumstances to the subject parcel after the taking. With respect to the land as vacant, Claimant's expert arrived at a unit land value of $1.52 per square foot for the remaining land area of 19,229 square feet, resulting in an after land value of $29,200.00 (R). Based upon his conclusion that there was no indirect damage to the land or land improvements, Defendant's appraiser used the before taking unit value of $0.65 per square foot in the after situation resulting in an after land value of $26,500.00 (R) (40,747 square feet x $0.65). The Court will use the median unit value of $1.30 per square foot in the after situation, resulting in an after vacant land value of $25,000.00 (R) (19,229 square feet x $1.30).

Claimant's expert concluded that the subject property had a fair market value, after the taking, of $115,000.00, of which $29,200.00 was attributable to the land itself and $85,800.00 was attributable to structural and land improvements. Defendant's appraiser, by contrast, concluded that the subject property had a value after the taking of $122,000.00, of which $26,500.00 was attributable to the land itself and $95,500.00 was attributable to building ($81,300.00) and land improvements ($14,200.00). Thus, while the two appraisers apportioned amounts attributable to land and improvements differently, their ultimate valuation of the subject property after the appropriation differed by only $7,000.00.

Given the relatively minor discrepancy between the valuations arrived at by the two appraisers, the Court finds it unnecessary to engage in an exhaustive discussion of the comparable sales offered by the appraisers. As the Court determined above, the highest and best use of Claimant's property did not change as a result of the taking. Thus, based upon a preponderance of the evidence and the Court's careful consideration of the comparable sales offered by each party, together with the adjustments thereto, the Court finds that the subject property had a fair market value after the appropriation of $118,500.00, which the Court allocates as follows: land, $25,000.00 and improvements, $93,500.00. [*6]

The Court makes no award for the estimated rental loss of $4,325.00 which Claimant's appraiser projected might have occurred as a result of Claimant's inability to use the office space during the construction project. It is a well established rule that mere inconvenience caused by construction associated with an appropriation is not compensable (see Welbilt v State of New York, 80 Misc 2d 439 [1975]). "However, if the temporary obstruction is a result of unreasonable, unnecessary, arbitrary or capricious acts or conduct by the one in charge of the improvement or construction, the abutting landowner has a right of action for damages resulting from such interference with access to his property" (Id. at 443). There was no proof of the latter adduced at this trial.

Accordingly, the Court finds that the Claimant sustained damages in the total sum of $26,000.00, allocated as follows:

Direct damages:

771 square feet of land acquired x $1.45 per square foot = $1,117.95

771 square feet of asphalt paving x $1.00 per square foot = $771.00

Total direct damages: $1,900.00 (R)

Indirect or consequential damages:

Land: $2,100.00

Improvements: $22,000.00

Total indirect or consequential damages: $24,100.00

Total damages: $26,000.00

Claimant is awarded the sum of $26,000.00, together with statutory interest from the vesting date of July 24, 2002 to November 12, 2006. Interest is suspended from November 13, 2006 to August 17, 2007, when Claimant filed his appraisal, pursuant to stipulations executed by the parties and ordered by the Court on November 13, 2006, March 15, 2007 and May 14, 2007. Interest thereafter resumes to the date of this decision and thereafter to the date of the entry of judgment thereon.[FN1]

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 and irrigation ditch or channel, street, road, highway or public or private right-of-way, or the bed thereof, within the limits of the appropriated property, or contiguous thereto, and is exclusive also of claims, if any, for the value of or damage to easements or appurtenant facilities for the construction, operation or maintenance of publicly owned or public service electric, telephone, telegraph, pipe water, sewer or railroad lines.

To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).

All motions not previously ruled upon or upon which decision was reserved are now denied.

LET JUDGMENT BE ENTERED ACCORDINGLY. [*7]Buffalo, New York June 18, 2009 JEREMIAH J. MORIARTY III Judge of the Court of Claims Footnotes

Footnote 1: Because there is no evidence on the record establishing the date of personal service of the notice of acquisition, prejudgment interest shall not be suspended pursuant to EDPL § 514 (B) (see Sokol v State of New York, 272 AD2d 604 [2000]). Thus, prejudgment interest will only be suspended during the period noted above as stipulated to by the parties.