|Claimant(s):||DARRELL L. CARTER|
|Claimant short name:||CARTER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||SIDNEY DEVORSETZ, PLLC
BY: BARCLAY DAMON LLP
DEBRA C. SULLIVAN, ESQ.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: KEVIN A. GROSSMAN, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 15, 2020|
|See also (multicaptioned case)|
Claimant, Darrell L. Carter, filed claim number 126695 on September 8, 2015, claiming that the State's appropriation of his land, pursuant to section 30 of the NYS Highway Law and the New York Eminent Domain Procedure Law, damaged it both directly and indirectly. The Notice of Appropriation, with the map and description of the appropriated property (Map No. 180, Parcel No. 207 [Fee], Parcel No. 241 [permanent easement]), was filed with the Cortland County Clerk on November 20, 2014. I adopt this map and description and incorporate it by reference. Claimant personally served the Attorney General on September 2, 2015. The State has complied with the necessary procedures under the NYS Eminent Domain Procedure Law with regard to service. This claim has not been assigned or submitted to any other court or tribunal for audit or determination. I have made the required viewing of the premises.
This matter was tried before me on May 9, 2019, and post-trial briefs were submitted by the parties. I have determined the following:
The property is located at 3917-3939, New York State Route 281 (Route 281), Town of Cortlandville, Cortland County, and is situated on the western side of Route 281, just south of its intersection with New York State Route 222 (Route 222). The property, which is commonly known as West Road Plaza, is, and has for many years been, operated as a retail plaza and mini-storage facility. The parties agree that the valuation date is November 20, 2014 and that the State appropriated 3,403 square feet of Claimant's fee interest in the land (Map #180, Parcel 207), as well as a permanent easement of 605 square feet (Map #180, Parcel 241). Also, both parties agree that the assessed value of the subject property is $1,225,000.00 (Claimant's Expert's Appraisal Report, labeled "Exhibit 1," p. 11; Defendant's Expert's Appraisal Report, labeled "Exhibit A," p. 5).
Claimant Darrell L. Carter initially acquired title in the property in 1986. In the most recent transfer, however, he purchased the property from Charlotte Carter for $120,405.74 and acquired title on September 21, 2001. The property was improved with multiple independent structures and was leased to various commercial tenants for retail shopping plaza and mini-storage use (Exhibit A, pp. 4, 16). The property was approximately 3.54 acres (154,202 square feet) before the taking (Exhibit 1, p. 1).
Mr. Carter testified that he owns the property and his occupation is being landlord to the tenants of the plaza. By his estimation, he lost eight or nine parking spaces as a result of the appropriation. He also testified that the ingress and egress for the property has "been condensed considerably," meaning that there is less room for cars to maneuver within the parking lot in the after situation (tr at 13).(1)
Mr. Carter also testified concerning a sign post taken in the appropriation that had formerly displayed a 160 foot sign for Blockbuster Video, one of his previous tenants. He did note that a variance had been granted by the town of Cortlandville for the sign post and that a sign of that dimension could not be placed again without seeking and obtaining a new variance from the town. He also stated that replacing the sign was not possible, as the town's required 15 foot setback would put the new sign post "in the middle of the driveway" (tr at 14).
Other than Mr. Carter, the testimony was limited to experts. Both parties called very experienced and knowledgeable appraisers. In addition, Defendant called Julian F. Clark, P.E., of Plumley Engineering, P.C., who performed a study relating to the effect of the appropriation on the parking and traffic flow within the parking lot of the property. That study was incorporated into the appraisal of Defendant's expert (Exhibit A, sub-exhibit 6).
Claimant's appraiser, Mr. Kenneth V. Gardner II, of North East Appraisals & Management Co., Inc., has been a licensed and certified appraiser for approximately 39 years. He has performed thousands of appraisals and testified in court on numerous occasions. Defendant's appraiser, Mr. E. Anthony Casale, also licensed and certified, has 26 years of appraising experience and has likewise performed thousands of appraisals and testified often in court. Not only were both appraisers experienced and knowledgeable generally, but each has experience appraising properties along the Route 281 corridor.
Highest and Best Use
Each parties' expert appraiser agreed that the appropriation did not alter the B-3 zoning designation for the property (Claimant's Exhibit 1, p. 11; Defendant's Exhibit A, pp. 59-60). Mr. Gardner describes the highest and best use of the land before the appropriation as "neighborhood shopping plaza" (Exhibit 1, p. 20) and after the appropriation as a "neighborhood shopping center" (Exhibit 1, p. 40). Mr. Casale, describes the highest and best use of the land as vacant as for "Commercial Development" and as improved for "Commercial Use" (Exhibit 1, pp. 64, 65). I find the highest and best use of the property to be commercial, both before and after the taking.Land Value - Direct Damages
Both Mr. Gardner (Exhibit 1, pp. 21, 32, 40, 52, 60) and Mr. Casale (Exhibit A, pp. 76, 85, 120, 124) used the Sales Comparison Approach and the Income Approach to establish values for the land in both the before and after aspects. Both agreed that the Cost Approach was not appropriate but disagreed as to the most reliable approach to value the property after the appropriation, with Claimant arguing that the Income Approach was most reliable and Defendant relying primarily on the Sales Comparison Approach. I adopt Mr. Gardner's analysis and conclusion with regard to the $10,000.00 in direct damages for the landscaping and sign structure, and find $6.00 per square foot a reasonable value for the 4008 square feet of land. Therefore, I adopt Mr. Gardner's opinion of direct damages in the amount of $34,000.00.Indirect Damages
Indirect damages are measured by the difference between the before and after values, less the land value and the value of the improvements appropriated (Matter of Eagle Cr. Land Resources, LLC [Woodstone Lake Dev., LLC], 149 AD3d 1324, 1326 [3d Dept 2017], lv denied, 29 NY3d 916 ). The scope of indirect damages was the focal point of disagreement between the parties in this action. Both parties have demonstrated weaknesses of varying import with their opponent's methodology in calculating these damages. In fact, each party has requested that I strike or discount as unreliable portions of their opponent's appraisal. For instance, Claimant showed clearly that Mr. Casale had underestimated the value of the mini-storage facility by basing his calculation only on actual rents and not addressing the fact that a significant portion is being used by Claimant and not currently generating the rents that it otherwise would. Claimant also illustrated shortcomings in the Sales Comparison Approach used by Defendant's expert Mr. Casale. Defendant, on the other hand, has demonstrated that Mr. Gardner apparently made an inappropriate "apples to apples" comparison between the rents generated by the national chain Blockbuster Video and those of the local merchant T.J. Nails.
At the center of this dispute about indirect damages is the degree to which Claimant has been harmed by the loss of parking and, as Mr. Carter stated, the "condensed" traffic flow within the property after the appropriation. Mr. Gardner testified that he calculated that Claimant had lost nine parking spaces (tr at 57). He also stressed the importance of the parking that was lost, as eight of the nine spots were in front of the "smaller retail building along the northerly portion of the frontage" (tr at 57). However, Claimant has conceded that he had never sought or received permission to park in that area from the State and that a portion of each of those eight spots, three to four feet, was actually in the State-owned right-of-way (tr at 24). Moreover, Mr. Gardner conceded that rents for the two tenants most affected by these alleged drastic changes had either stayed the same or increased since the appropriation.
Accordingly, while I adopt Mr. Gardner's analysis of indirect damages with regard to the land grade change ($7,000.00) and the increased functional obsolescence of the site improvements ($4,000.00), I disagree with his assessment of $155,000.00 in indirect damages to the building based upon functional obsolescence. I find that Claimant is entitled to an award of $25,000.00 in indirect damages for increased functional obsolescence of the building.Summary
Land, 4,008 sq. ft. at $6.00/sq. ft. = $24,000.00 (rounded)
Site improvements $10,000.00
Land Grade Change $ 7,000.00
Site Improvements $ 4,000.00
Total damages award to Claimant $70,000.00
Therefore, Claimant is entitled to an award of $70,000.00, with statutory interest from the vesting date of November 20, 2014 (date of appropriation) to the date of this decision, and thereafter to the date of entry of judgment for the appropriation (see CPLR §§ 5001 and 5002). Suspension of interest is not warranted since the notice of acquisition was not personally served (Sokol v State of New York, 272 AD2d 604 [2d Dept 2000]; see also EDPL 514 [B]).(2)
The award to Claimant herein is exclusive of the claim, 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 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.
Any motions on which the Court previously reserved or were previously undecided are hereby denied.
It is ordered that, to the extent Claimant has paid a filing fee, it is recoverable pursuant to Court of Claims Act § 11-a (2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
September 15, 2020
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims
1. References to the trial transcript will be referred to as (tr at page).
2. Interest is suspended from October 26, 2017 through March 2, 2018 (the date Claimant filed his appraisal) pursuant to "So Ordered" Stipulations filed on October 20, 2017, December 19, 2017 and February 16, 2018.