Opinion
October 31, 1967
Appeal by the City of Binghamton from an order and judgment of the Supreme Court, Broome County, which confirmed the report of the Commissioners of Appraisal herein. On or about November 30, 1965, the City of Binghamton for, and on behalf of, the Binghamton Urban Renewal Agency, commenced a proceeding under the Condemnation Law to acquire a parcel of land known as 115-117 and 121-123 Water Street in the City of Binghamton. The fee title to the property was in Burton I. Koffman, and the respondents Charles H. Sheffield and Bernard J. Feheley were in possession of the property under an installment contract of purchase dated August 1, 1960 which recited a purchase price of $60,000. Upon entering into possession, Sheffield and Feheley removed an old foundation, filled the lot with 600 tons of crushed stone, and installed a blacktop pavement across the entire width of the property to a depth of 135 feet on the north line and 110 feet on the south line at a cost of $20,000, and commenced using the premises as a parking lot. A flood wall, erected on a permanent easement granted to the State of New York, extends along the westerly line of the paved area. The remainder of the property to the west of the flood wall extends about 62 feet to the Chenango River and is 12 feet below the level of the paved area. The State of New York has an easement 15 feet wide extending along the north line of the property from Water Street to the flood wall. The parties agree that the highest and best use of the premises was as a parking lot, and the record establishes that it was capable of parking 90 cars under normal conditions, and at peak periods could accommodate 100 cars, and produced an annual gross income of $25,000. The appellant contends that the evidence in the record is not sufficient to sustain the award; that the sales which the respondents' expert used are not comparable; that the respondents' expert did not use a proper method of valuation and there is no basis for the respondents' valuations. "The power of the courts to review an award of the commissioners is strictly limited, and every intendment is in favor of the action of the commission ( Adirondack Power Light Corp. v. Evans, 226 App. Div. 490, 493). * * * The courts will reject a determination of the commissioners only for irregularity in the proceedings, or if based on an erroneous principle of law ( Matter of City of New York [ Northern Blvd.], 258 N.Y. 136, 155), or, if it `shocks not only one's sense of justice, but one's conscience' ( Matter of City of New York [ Old Third Ave.], 241 App. Div. 13, 16, appeal dismissed 265 N.Y. 503)." ( Matter of Huie [ Fletcher-City of New York], 2 N.Y.2d 168, 171.) In arriving at a just compensation, it is competent for the commissioners to consider fair market value, reproduction costs, sales of similar property, income, highest suitable use and location. ( Matter of Huie [ Fletcher-City of New York], supra.) The respondents' expert testified concerning other sales within the area of the subject property and in more remote areas. In each instance he considered the location, shape and size of the lots, and indicated the adjustments which, in his opinion, would have to be made in order that they might be deemed comparable, and arrived at a valuation of $135,000. In addition he used the capitalization of income method to arrive at a valuation of $126,000. The appellant's expert used the comparable land sales approach and arrived at a land value of $40,200 plus improvements of $2,300 for a total valuation of $42,500. Although the appellant contends that the capitalization of income method is not a proper method of valuation, it does not appear that the commissioners used this method in arriving at their evaluation. The appellant contends that certain sales used by the respondents are not comparables since adjustments in excess of 100% are required in order that they might be compared with the subject property. In one instance both parties used a common sale as a comparable. This sale involved a smaller lot, 8,570 square feet as compared to 16,000 square feet, was irregular in shape and had approximately 65 feet less frontage. This sale the appellant's expert adjusted downward approximately 55% to arrive at a value of $3.05 per square foot for the subject property. The respondents' expert adjusted this sale upwards approximately 25% to arrive at a value of $8.40 per square foot for the subject property. After giving testimony relating to 10 comparable sales, respondents' expert witness found a square foot valuation for the subject property of $8.50 per square foot, as compared to appellant's testimony relating to six comparable sales, and a square foot valuation for the subject property of $2.50 per square foot. Although the approach to valuation used by the commissioners is not indicated in their report, it appears that they gave due consideration to the testimony of the experts as to comparable sales, and arrived at a square foot valuation within the range of the testimony of the expert witnesses and, adding the appellant's valuation for the improvements, arrived at their total valuation of $102,000. The commissioners have wide latitude and, as long as their determination finds support in the record, may use their own judgment and experience, as well as information obtained from their inspection of the property. Inasmuch as the award falls within the range of the differing valuations of the experts, and was predicated on relevant factors, we do not see how we can say that, as a matter of law, the award is so obviously wrong that it shocks the sense of justice or the conscience of the court. ( Matter of Huie [ Fletcher-City of New York], supra.) We are, therefore, of the opinion that the evidence in this record is legally sufficient to sustain the award. Order and judgment affirmed, with one bill of costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Staley, Jr., J.