Opinion
# 2015-015-593 Claim No. 121419
02-20-2015
KNICKERBOCKER DEVELOPMENT CORP., One Stonebreak Road, Malta, New York v. THE STATE OF NEW YORK
Goldman Attorneys, PLLC By: Paul J. Goldman, Esquire Honorable Eric T. Schneiderman, Attorney General By: Michele M. Walls, Esquire Assistant Attorney General
Synopsis
Direct damages were awarded in condemnation case. Consequential damages were denied.
Case information
| UID: | 2015-015-593 |
| Claimant(s): | KNICKERBOCKER DEVELOPMENT CORP., One Stonebreak Road, Malta, New York |
| Claimant short name: | KNICKERBOCKER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121419 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Goldman Attorneys, PLLC By: Paul J. Goldman, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Michele M. Walls, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 20, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Knickerbocker Development Corp., seeks direct and consequential damages allegedly incurred as a result of the appropriation of a portion of its property pursuant to Highway Law § 30 and the Eminent Domain Procedure Law.
The appropriated property is described in an acquisition map filed in the Office of the Saratoga County Clerk on August 6, 2010 (Exhibit 4, pp. 85-88). The Court adopts the description of the appropriated property as shown on the filed acquisition map. This claim has not been assigned or submitted to any other Court, tribunal or officer for audit or determination. The claim was filed in the Clerk's office on June 12, 2012 and an amended claim was filed on November 28, 2012. The claim was served on the Attorney General on June 12, 2012.
Claimant owns three contiguous parcels of property located at the northeast corner of Route 9 and Stone Break Road in the Town of Malta, State of New York (see Exhibit 4, pp. 30-31). The first, most southerly of the three parcels, referred to as Unit #1 during the course of trial, is a flag-shaped parcel consisting of approximately 2.49 acres and located in the PDD-9 Luther Forest Planned Development District (Exhibit 4, p. 90). Unit #1 was purchased in 2001 (Exhibit 1) and thereafter improved with an office building and parking lot accessible from what was referred to at trial as Old Stone Break Road, which runs along the eastern border of Unit #1 and intersects with Stone Break Road from the north. The "pole" portion of Unit #1 borders Stone Break Road and consists of vacant land which, prior to the taking, had 99 feet of frontage on Route 9 and 809 feet of frontage on Stone Break Road (Exhibit A, p. 44). Unit #2, purchased in 2003 (Exhibit 2), consists of .95 acres of vacant land situated immediately to the north of the pole portion of Unit #1 (Exhibit A, p. 47). Prior to the taking, Unit #2 had approximately 150 feet of frontage on Route 9. Unit #3, purchased in December 2006, consists of .93 acres of vacant land situated immediately to the north of Unit #2 with approximately 150 feet of frontage on Route 9 (id. at p. 49). Both Units #2 and #3 are located in the C-1 Downtown District (Exhibit 4, p. 90). Properties located in either the C-1 or PDD-9 zones require a special use permit for the operation of a retail establishment (Exhibit 4, p. 91; Exhibit 3 included within Exhibit A).
The Court has made the required viewing of the property.
The office building is leased to MLB Construction Services, LLC, an entity which shares common ownership with the claimant.
Global Foundries announced it was opening its Malta facility in June 2006 and construction began in June 2009. As described in Exhibit 4, the claimant's appraisal report, the Global Foundries facility "is one of the most advanced semiconductor manufacturing facilities in the world" (Exhibit 4, p. 7). Stone Break Road, once a dead end, now serves as one of the major entrances to the Global Foundries facility. On August 6, 2010, a wrap-around strip of claimant's land at the corner of Route 9 and Stone Break Road was appropriated without access in order to construct a roundabout. The total appropriation consisted of 10,147 square feet, which included all of Unit #1's frontage on Route 9 (99 feet) and all but 25 feet of Unit #2's frontage on Route 9. No portion of Unit #3 was appropriated.
Claimant seeks both direct and consequential damages arising from the appropriation. Claimant contends that prior to the appropriation it had assembled a rectangular parcel of vacant land at the intersection of Route 9 and Stone Break Road totaling 2.53 acres with 400 feet of frontage on Route 9 and approximately 270 feet of frontage on Stone Break Road. This parcel would be established by means of a lot line adjustment, severing the pole portion of Unit # 1 and combining it with Unit # 2 and Unit # 3. According to the claimant, prior to the appropriation the highest and best use for the reconfigured parcel was for high traffic retail. Following the appropriation, claimant contends that the property is no longer suitable for high traffic retail use due to its limited access and the installation of a roundabout at the intersection of Route 9 and Stone Break Road which allegedly eliminated its corner identity.
Thomas C. Andress, an engineer employed by ABD Engineers and Surveyors, testified that before the appropriation there was no restriction on claimant's ability to obtain a lot-line adjustment severing the pole portion of Unit #1 in order to merge it with Units #2 and #3. In this way, according to Mr. Andress, three access points to the assemblage were possible: (1) a full entrance/exit on the northwest portion of Unit # 3 abutting Route 9; (2) a right-in/right-out point of ingress and egress on Unit #2 also abutting Route 9, and (3) a full entrance/exit on the pole portion of Unit #1 abutting Stone Break Road (see Exhibit 9). Mr. Andress testified that such access would have facilitated the circulation of traffic into, within and from the property necessary to accommodate high traffic retail enterprises. He also testified that retail uses are allowed with a special use permit in both the C-1 zone (Units #2 and #3) and the PDD-9 zone (Unit #1). Mr. Andress stated that the concept plan received in evidence as Exhibit 9 would have met the criteria for a special use permit. Notably, Minogue's Beverage facility, located in the PDD-9 zone adjacent to Unit #3, received approval in 2012 for a site-plan amendment to expand the existing facility to accommodate a retail beverage business (Exhibits 30 and 31). According to the witness, all of the applications for special use permits that were submitted between 2006 and 2011 were ultimately approved upon compliance with certain conditions (see Exhibits 11-31).
Mr. Andress opined that although the feasibility of an access point on the northwest corner of Unit #3 remains unaffected by the appropriation, an access point from Route 9 onto Unit #2 is no longer possible, nor is an access point from Stone Break Road. Mr. Andress testified that Unit #2's remaining 25 feet of frontage on Route 9 is insufficient to support an access point and access on Stone Break Road is no longer possible due to the change in the configuration of the roadway at that location. According to Mr. Andress' testimony, the diagonal hatch lines in the center median of Stone Break Road provide warning to vehicle operators of the raised median on the approach to the roundabout and prevent left turns into or out of the subject property from Stone Break Road. However, Mr. Andress later testified he was unaware of any criteria that would prevent the construction of an access point on Stone Break Road, stating only that he would "imagine" that the diagonal hatch lines in the center median would prohibit left turns (Tr. 292; see also 290-296). Mr. Andress opined that a right-in/right-out access point on Stone Break Road would not be feasible as vehicles on the approach to a roundabout do not necessarily slow down, although a de-acceleration lane could be requested.
Reed G. Sholtes, an engineer employed by the Department of Transportation (DOT), had a different view of the purpose and effect of the diagonal hatch lines in the center median of Stone Break Road. He testified that cross-hatch markings form a "traversable median" that is flush with the pavement in order to permit vehicular travel (Tr. 483). In addition, while it was undisputed that Unit #2's 25 feet of remaining frontage on Route 9 is insufficient for an entrance, Mr. Sholtes testified that the DOT normally allows only one entrance/exit to a property absent an engineering analysis justifying the need for more. This testimony is supported by DOT's driveway design policy, which states the following:
"Number of Driveways
Normally only one driveway shall be permitted for each residential property, minor commercial, and subdivision. An additional driveway may be permitted by the Department if both sufficient frontage exists and extenuating circumstances justify a second driveway" (Exhibit T, § 5A.4.1.3, p. 5A-13).
Anthony J. Tozzi, the Building and Planning Director for the Town of Malta testified that the Town adopted a comprehensive plan in 2006 which encouraged cross-parcel access, minimization of curb cuts, and influencing traffic flow onto secondary streets and arterials. The overall objective of the plan, according to Mr. Tozzi, was to minimize successive entrances and exits along the Route 9 corridor. As a result, the Planning Board's past practice has been to require shared access unless an applicant is able to demonstrate, through a traffic study, that additional access was required. The thrust of Mr. Tozzi's testimony was that the availability of an access point on Unit #3 rendered the success of any future application for an additional curb cut on Unit #2 unlikely absent an engineering analysis justifying the need for an additional entrance.
In fact, defendant's appraiser identified five retail establishments along the Route 9 corridor for which shared access was required.
Michael S. Del Vecchio, a Commercial Real Estate Broker, testified that the key features high traffic retailers look for in a property are a corner location governed by a traffic control device, high traffic counts, flat land, and easy access on either one or two roads. Mr. Del Vecchio testified that before the appropriation, the assemblage of parcels was desirable to retailers because it was a corner lot with access from both Route 9 and Stone Break Road. In addition, the intersection was subject to a traffic control device in the form of a stop sign for traffic traveling west on Stone Break Road. Mr. Del Vecchio testified that claimant's property is located on the north side of Stone Break Road, which provided easy right-turn access for Global Foundries' employees on their way home from work. Mr. Del Vecchio testified that after the appropriation the property is no longer attractive to high traffic retailers such as Cumberland Farms, Fastrac, or CVS because there is only one possible access point to the property, on Route 9 at the northwest corner of Unit #3, and the installation of a roundabout rather than a signalized intersection is undesirable to high traffic retailers (see Exhibit 4 pp. 71-78; Exhibit 10). He stated that such retailers do not want to be located near a roundabout because traffic flows without stopping and the vehicle operator's focus is on the roundabout rather than the retail store on the corner.
In formulating his opinion regarding the market value of the property before and after the appropriation, claimant's appraiser Kenneth V. Gardner relied upon Mr. Andress' opinion regarding the extent to which the property could be developed before and after the taking. In particular, Mr. Gardner testified that his opinion, that the assembled parcels are not appropriate for high traffic use after the taking, "is based on the report that Tom Andress, the engineer, provided" (Tr. 354). He testified that before the appropriation, the subject property was located at a high traffic corner. Stone Break Road is now a major access road to Global Foundries and the Luther Forest Technology Park, and a stop sign on Stone Break Road at the intersection of Route 9 created a desirable corner location for national or other high traffic retailers. The assemblage of lots under common ownership was located on a corner and provided adequate size and frontage, in his opinion, to allow retail development consistent with the concept plan depicted in Exhibit 9. Mr. Gardner opined that after the taking the highest and best use of the property changed from high traffic retail to a lower intensity use such as office use. Unlike Minogue's, which is accessible from both Route 9 and Old Stone Break Road, Mr. Gardner assumed, in reliance upon the opinion of Mr. Andress as to the accessibility of the property before and after the taking, that the subject parcel is accessible from only a single location on Route 9 after the appropriation. Mr. Gardner testified that the lack of access to the property from Stone Break Road reduced its corner influence thereby changing its highest and best use (see Exhibit 10, concept plan drafted by Thomas C. Andress). Utilizing the sales comparison approach to appraise the value of the subject property, Mr. Gardner opined that before the appropriation the value of the property was $8.25 per square foot or $910,940 (110,417 SF x $8.25= $910,940.25) (Exhibit 4, pp. 27-28). In reaching this determination, he relied upon sale prices of properties with various degrees of corner influence, one of which was Minogue's Beverage facility next door (Exhibit 4, p. 27). To arrive at the value of the property after the taking, Mr. Gardner utilized for comparison purposes mid-block properties with access on only one road and opined that the value of the remaining property after the taking was $4.25 per square foot or $426,147.50 (100,270 SF x $4.25) (Exhibit 4, pp. 43-44). The alleged consequential damages were determined by multiplying the diminished value of the property after the appropriation ($4.00 SF) by the number of square feet of property remaining (100,270) to arrive at the consequential damages claimed in the amount of $401,080.00 (Exhibit 4, p. 44). Direct damages arising from the taking were computed by multiplying the area appropriated (10,147 SF) by the value of the property before the taking ($8.25) to arrive at the direct damages claimed in the amount of $83,713. Mr. Gardner opined that total damages were $484,793.00.
The square feet comprising the direct taking (10,147 SF) was deducted to determine consequential damages after the taking (Lerner Pavlick Realty v State of New York, 98 AD3d 567, 568 [2d Dept 2012] ["Consequential damages are measured by the difference between the before and after values, less the value of the land and improvements appropriated"]).
Francis G. Palumbo is a Landscape Architect employed by C.T. Male Associates, an engineering firm in Latham. Mr. Palumbo was retained by the defendant to perform a land use analysis and testified that the highest and best use of the property before and after the appropriation, for office use, remains unchanged. In reaching this conclusion, Mr. Palumbo considered only those uses for the property which local zoning laws permitted as a matter of right, which did not include retail uses. Inasmuch as property in the C-1 zone required 200 feet of frontage, he combined Units #2 and #3 to formulate development plans for office buildings which he opined were feasible both before and after the taking (Exhibit C, attachment A). Inasmuch as Unit #1 was improved with an office building at the time of the appropriation, he saw no impact to that property as a result of the taking and did not consider the pole portion of the lot in formulating his opinions regarding the highest and best use of the property. Mr. Palumbo drafted development plans for the property both before and after the taking, which depict either one or two office buildings on Units #2 and #3 accessible from Route 9. The proposed access point for the erection of a single building is on the northwest corner of Unit #3, and the proposed access point for the two building alternative straddles the property line between Unit #2 and Unit #3, utilizing the 25 feet of frontage on Unit #2 (see Exhibit C, attachment A). In this way, Mr. Palumbo opined that Units #2 and #3 can be marketed together, or independently, pursuant to a shared access agreement. According to Mr. Palumbo, since the same type of facilities could be erected on the premises before and after the taking, the highest and best use of the property remained unchanged. Notably, Mr. Palumbo's development plans complied with the C-1 requirements for building set backs and rear parking whereas Mr. Andress' concept plans did not take these requirements into consideration (see Exhibits 9 and 10 and Exhibit A, attachment Exhibit 3-10). Mr. Palumbo was "highly skeptical" that an access point on Stone Break Road would be approved for the purposes of establishing a retail use due to the high volume of traffic on the roadway and stated that "[a]t best, we would foresee the possible approval of a right in/right out access" (Exhibit D, p. 3, sixth paragraph). Mr. Palumbo testified that such access could be more easily accomplished with an easement rather than a lot merger of the pole portion of Unit #1.
Since the date of vesting on August 6, 2010, the zoning regulations in the Town of Malta have changed.
While there was some testimony regarding the use of the pole portion of Unit #1 to fulfill the green space requirement in order to secure site plan approval of the construction of an office building, the green space requirements, if any, in the PDD-9 zone were not established at trial. Whether or not the severance of the pole portion of Unit #1 would require a site plan amendment for Unit #1 was also not established at trial.
Todd Thurston of Thurston, Casale & Ryan was retained by the defendant to perform an appraisal of the subject property before and after the appropriation. Mr. Thurston testified that the highest and best use determination is made by reference to what is legally permissible, physically possible, financially feasible and maximally productive. Upon consideration of these factors, Mr. Thurston opined that the highest and best use of Unit #1, as improved, is for office/flex development (Exhibit A, pp. 54-55) and the highest and best use of Units #2 and #3, both before and after the taking, was for commercial development. Using the sales comparison approach to appraise the value of the land, Mr. Thurston opined that the before and after value of Unit #1 was $2.90 a square foot (8,178 feet were appropriated from Unit #1) resulting in a direct loss of $23,716.20 (rounded to $23,700) and no consequential damages (Exhibit A, p. 103). Mr. Thurston appraised the value of Units #2 and #3 before the taking at $4.25 per square foot. However, he appraised the post-taking value of these lots at $3.85 to reflect adjustments for the increased lot size resulting from the necessary merger of Units #2 and #3 after the appropriation (Exhibit A, pp. 100-101). Thus, Mr. Thurston determined that the indirect damages to Unit #2 are $40,300.00 and direct damages to Unit #2 are $8,400.00 ($4.25 per square foot multiplied by the 1,969 square feet appropriated rounded to $8,400). Mr. Thurston also valued landscaping improvements lost as the result of the taking in the amount of $1,300. Total damages, according to Mr. Thurston's appraisal, were $65,300.00.
Mr. Thurston utilized both the sales comparison approach and the income capitalization approach to determine the value of the land and improvements. Reconciling the two approaches, he determined the land value of Unit #1 to be $314,300 and the building value to be $660,700 (Exhibit A, p. 80).
Indirect damages to Unit #2 were computed by deducting 1,969 square feet, which represents the land appropriated from Unit #2, from 81,893 square feet, Unit #2's total square feet before the taking, to arrive at 79,924 square feet multiplied by $3.85 and rounded to $40,300.
Just compensation is required to be paid when private property is appropriated for public use (US Const, 5th Amend; NYConst, art I, §7 [a]). When there is a partial taking of land, the proper measure of damages is "the difference between the fair market value of the whole before the taking and the fair market value of the remainder after the taking" (Acme Theatres v State of New York, 26 NY2d 385, 388 [1970]). "Therefore, 'when [defendant] takes part of a condemnee's property and leaves a remainder, just compensation includes not only the direct damages for the portion that was taken, but also any consequential or indirect damages caused by the taking that impaired the remaining portion of the property' " (Rose Park Place, Inc. v State of New York, 120 AD3d 8, 10 [4th Dept 2014] [citation omitted]). "Damages must be measured based upon the fair market value of the property as if it were being put to its highest and best use on the date of the appropriation, whether or not the property was being used in such manner at that time" (Matter of State of New York (KKS Props., LLC), 119 AD3d 1033, 1034 [3d Dept 2014]; see also Matter of City of New York (Franklin Record Ctr.), 59 NY2d 57, 61 [1983]; Chester Indus. Park Assoc., L.P. v State of New York, 103 AD3d 827, 827 [2d Dept 2013], lv denied 21 NY3d 856 [2013]; Gyrodyne Co. of Am., Inc. v State of New York, 89 AD3d 988, 989 [2d Dept 2011]). As made clear by the Court of Appeals in Matter of City of New York (Broadway Cary Corp.) (34 NY2d 535, 536 [1974]):
"While it is not essential to demonstrate either that the property had been used as its projected highest and best use or that there had been an ante litem plan for such use . . . it is, of course, necessary to show that there is a reasonable probability that its asserted use could or would have been made within the reasonably near future . . . and a 'use which is no more than a speculative or hypothetical arrangement in the mind of the claimant may not be accepted as the basis for an award' " (quoting Matter of City of New York (Rudnick), 25 NY2d 146, 149 [1969] [emphasis added]; see also; Matter of City of New York (Jomar Real Estate Corp.), 94 AD2d 724 [2d Dept 1983], affd 61 NY2d 843 [1984]; Matter of Estate of Haynes v County of Monroe, 278 AD2d 823 [4th Dept 2000]; but see Matter of Metropolitan Transp. Auth. (Longridge Assoc., L.P.), 122 AD3d 856, 857 [2d Dept 2014] [" '[i]t is necessary to show that there is a reasonable possibility that the property's highest and best asserted use could or would have been made within the reasonably near future' "] [emphasis added] [citation omitted]).
The fact that an assemblage of parcels is required for retail use of the land does not preclude a determination that such use is reasonably probable. As recently made clear by the Court in Matter of City of Long Beach v Sun NLF Ltd. Partnership (124 AD3d 651 [2d Dept 2015]):
" ' "The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value" '(Matter of Metropolitan Transp. Auth., 86 AD3d 314, 320, quoting Olson v United States, 292 US 246, 256). 'Thus, a claimant is entitled to the fair market value of its property for its highest and best available use even though that use is in connection with adjoining properties, provided there is a reasonable probability that the condemned property would be combined with other tracts in the reasonably near future' " (Matter of Metropolitan Transp. Auth., 86 AD3d at 320).
Both appraisers agreed that a determination regarding the highest and best use of a property is made by reference to what is physically possible, legally permissible, financially feasible and maximally productive (see Exhibit A, p. 53 and Exhibit 4, p. 12). Claimant purchased Units #2 and #3 with an eye toward developing the properties for commercial use. There was frontage on Route 9 with two apparent access points on each of Units #2 and #3 and the potential for access on Stone Break Road. Global Foundries, located at the end of Stone Break Road, began construction in June 2009 and was expected to create more than 1,465 jobs (Exhibit A, p. 20). Mr. Del Vecchio, a commercial real estate broker, testified that the location of the pole portion of Unit # 1 on the north side of Stone Break Road provided easy access for Global Foundries' employees returning home from work, and the stop sign on Stone Break Road at its intersection with Route 9 made this location desirable for high traffic retail use.
Both Mr. Andress and Mr. Tozzi agreed that a lot-line adjustment, as a form of subdivision, requires Planning Board approval. It is undisputed, however, that the assemblage of parcels under common ownership was of sufficient size and dimension to accommodate retail structures in compliance with the Town's set-back requirements and could be developed in accordance with the Town's comprehensive plan for parking in the rear of the building. Moreover, while Mr. Tozzi testified that a retail use on the assembled parcels would require compliance with the zoning criteria applicable in both the C-1 and PDD-9 zones, it is significant that Minogue's Beverage facility, located in the PDD-9 zone adjacent to Unit #3, obtained a site plan amendment for the operation of a retail establishment at that location (Exhibit 35). Additionally, the proof established that applications for special use permits submitted between 2006 and 2011 were uniformly approved (Exhibits 11-31). As no evidence suggests that the assemblage could not have been used for the operation of a retail establishment, it appears reasonably probable that such a proposed use would have been approved by the Planning Board. Accordingly, the Court finds that claimant established with reasonable probability that the highest and best use of the assemblage, for high traffic retail, was legally permissible, financially feasible and maximally productive.
Claimant has, however, failed to establish either a change in the highest and best use as a result of the appropriation or that any diminished access limits its potential exploitation of the property. The claim for consequential damages rests primarily on the contention that the property is no longer suitable for high traffic retail use due to the loss of direct access from Route 9 to Unit #2, and to the pole portion of Unit #1 from Stone Break Road. The Court of Appeals has made clear that an appropriation which results in access which is merely circuitous is not compensable unless it renders the remaining property unsuitable to its highest and best use (Priestly v State of New York, 23 NY2d 152 [1968]; Bopp v State of New York, 19 NY2d 368 [1967]; Selig v State of New York, 10 NY2d 34 [1961]; see also County of Erie v Abbot-Ridge Rds., G.M. 52 A & 137 Parcels No. 5 & 5A, Mobil Oil Corp., 116 AD2d 971 [4th Dept 1986]; Hylan Flying Servs. v State of New York, 54 AD2d 278 [4th Dept 1976], lv dismissed 40 NY2d 809 [1977], appeal and lv dismissed 40 NY2d 1092 [1977]; Slepian v State of New York, 34 AD2d 880 [1970]; Avon Park v State of New York, 33 AD2d 828 [3d Dept 1969], appeal dismissed 26 NY2d 839 [1970]. The Appellate Division, Second Department, has interpreted this principal to "encompass cases where the remaining property's highest and best use has not changed, but the diminished access limits the potential exploitation of the property for its highest and best use" (Matter of Metropolitan Transp. Auth. (Washed Aggregate Resources, Inc.), 102 AD3d 787, 793 [2d Dept 2013], appeal dismissed 21 NY3d 938 [2013], lv denied 22 NY3d 858 [2013]; Split Rock Partnership v State of New York, 275 AD2d 450 [2d Dept 2000], lv denied 95 NY2d 770 [2000], rearg denied 96 NY2d 793 [2001]; Matter of County of Rockland (Kohl Indus. Park Co., 147 AD2d 478 [2d Dept 1989], appeal denied 74 NY2d 607 [1989]). What constitutes the highest and best use, and access suitable for such use, is generally a question of fact (Priestly, 23 NY2d at 156).
Initially, with regard to the alleged loss of direct access to Unit #2, claimant failed to establish with reasonable probability that two access points on Route 9 would have been permitted absent the appropriation. The proof adduced at trial established that it was the policy of the DOT to permit only one access point on a particular road absent an engineering analysis justifying the need for additional access. Moreover, in 2006 the Town of Malta adopted a comprehensive plan which encouraged cross-parcel access and the minimization of curb cuts along the Route 9 corridor. Thus, the Planning Board generally requires shared access along the Route 9 corridor unless an applicant is able to demonstrate, through a traffic study, that additional access was required. Notably, Units #2 and #3 had insufficient frontage to develop the parcels independently and had to be combined for this purpose. Considering the available access point from Route 9 to Unit #3 of the assemblage and the requirement of shared access, the Court cannot conclude that it was reasonably probable that a second access point on Route 9 would have been permitted but for the appropriation.
With regard to the proposed access point from Stone Break Road to the pole portion of Unit #1, Mr. Andress testified that the distance from the end of the taking without access on Stone Break Road to the proposed lot-line adjustment severing the pole portion of Unit #1 was approximately 120-140 feet. With respect to the feasibility of an access point from Stone Break Road at this location, Mr. Andress was queried during the course of trial regarding the basis for his conclusion that such access was not possible:
"Q. . . . [F]rom the point where the State's map ends . . . all the way to the end of Stone Break before it turns into Old Stone Break Road, there is nothing restricting access to . . . those parcels?
. . .
A. My previous testimony here on the stand was very clear in that the configuration of the roadway that was built there as part of those improvements restricts, and in my professional opinion, prohibits the ability to make an access . . . to the subject parcel.
THE COURT: Okay. And let's be clear about the basis of your opinion in that regard. Why?
THE WITNESS: Oh, the basis of opinion is, again, Your Honor, the many years that I've done design work, understanding
THE COURT: . . . [A]re you aware of any Town or State requirements that would prohibit it?
THE WITNESS: I - - I'm not aware of any legislative -
THE COURT: Or regulatory -
THE WITNESS: - - action. Or regulatory.
THE COURT: Or the MUTCD . . .
THE WITNESS: The specifics of MUTCD, I couldn't -
THE COURT: -- I'm asking you -
THE WITNESS: - - quote, but I -
THE COURT: - - a global question.
THE WITNESS: - - would imagine that within MUTCD, based upon the striping in that design, that it would be prohibiting -
THE COURT: It would be -
THE WITNESS: - - a turn.
THE COURT: prohibiting on[ly] left-hand turns?
THE WITNESS: A left-hand turn.
THE COURT: But what about right-hand turns from westbound traffic?
THE WITNESS: Right-hand turns from westbound traffic would then be the function . . . of the planning board to look at that access, and make a -
THE COURT: Okay. But that's -
THE WITNESS: - - determination.
* * *
THE COURT: I'm asking you the basis for your opinion that from the readjusted lot line to the end, or the beginning, depending on how you look at it, with no access taking, you know there's 120 to 140 feet according to your estimation, correct?
THE WITNESS: Correct.
THE COURT: And so the question is . . . is there any regulatory, local, state, national entity that would have established criteria that would prevent the construction of an entrance point at that - in that area?
THE WITNESS: Not that I'm aware of" (Tr. 291- 294).
The claimant's proof failed to establish any basis for concluding that access to the aggregated parcels from Stone Break Road is unavailable and that, as a consequence, the property is now undesirable as a high traffic retail location. Mr. Andress could not cite any local, state or nationally recognized standards or requirements that would prevent installation of a right-in/right-out access in the 120 to 140 feet remaining between the easternmost point of the taking without access on Stone Break Road and the terminus of the proposed lot line adjustment. In fact, claimant's Exhibit 9 depicts an access point in this precise location in its pre-taking development plan, and the claimant has failed to establish any reason to find that a similar access would be prohibited, prevented or otherwise unavailable after the taking. In this regard the Court notes Exhibit S, an aerial photograph of a roundabout installed at the intersection of Routes 9 and 67 approximately two miles north of the subject property. Depicted in the upper right corner of the photograph is a right-in/right-out access at a location which appears to be the same position and distance vis-a-vis the roundabout as the Stone Break Road access which appears on claimant's pre-taking development plan (Exhibit 9) but is absent from the post-taking development plan (Exhibit 10), ostensibly because installation of the roundabout prevents such access.
Claimant's post-taking development plan, Exhibit 10, includes a full multi-directional access on Route 9 at the northwest corner of Unit #3. The establishment of a right-in/right-out access on Stone Break Road in the area between the end of the taking without access and the proposed adjusted lot line would provide access from two separate roadways, which claimant's own proof established is a primary factor considered by high traffic retailers in their property development decisions. Such an access on Stone Break Road would also be consistent with the Malta Town comprehensive plan which, according to Mr. Tozzi, seeks to direct vehicle traffic flow away from Route 9 and onto secondary streets and arterials. Furthermore, such an access would allow potential high traffic retail purchasers of the property to capture the substantial "home commute" traffic flowing west on Stone Break Road from the Global Foundries complex at the end of the work day. It is claimant's contention that the lack of access to the property after the taking, in particular from Stone Break Road, negated its prior status as a corner location and rendered it undesirable to high traffic retailers, thus effecting a change in the highest and best use. Having failed to establish that such access is unavailable, its claim for compensatory damages is untenable.
To the extent there was testimony that the property is no longer suitable for high traffic retail because of its close proximity to a roundabout, the law is well settled that a property owner's rights are "subject to the fullest reasonable exercise of the public's primary right of travel and, accordingly, damages resulting from reasonable traffic regulations are noncompensable" (Northern Lights Shopping Ctr. v State of New York, 20 AD2d 415, 421 [4th Dept 1964], affd 15 NY2d 688 [1965] [consequential damages were not recoverable where one-foot wide strip of property was appropriated in order to install guardrail in connection with the construction of a traffic circle in front of claimant's property where suitable access remained]; see also La Briola v State of New York, 36 NY2d 328 [1975] [discontinuance of highway on which property abutted was noncompensable]; Bopp v State of New York, 19 NY2d 368 [1967] [damages incurred because traffic no longer passes condemnee's property was not compensable]; Cities Serv. Oil Co. v City of New York, 5 NY2d 110 [1958], rearg denied 5 NY2d 1041 [1959], cert denied 360 US 934 [1959] [municipality may regulate and control traffic by establishing a bus stop in front of condemnee's premises as the right of the public to use the streets is paramount]). Thus, dimunition in the value of a condemnee's remaining land is not compensable as a result of the "whole improvement and consequent diversion of traffic" (McHale v State of New York, 278 AD 886, 887 [1951], affd 304 NY 674 [1952]; A. E. Nettleton Co. v State of New York, 11 AD2d 899 [4th Dept 1960] [changes in the flow and pattern of traffic are not compensable]; Esso Std. Oil Co. v State of New York, 9 AD2d 840 [3d Dept 1959] [same]). To the extent the consequential damages claim in the case at bar was supported by proof of a diminution in the value of the claimant's remaining land by virtue of the installation of the roundabout, the aforementioned case law establishes that no damages may be recovered.
Based on the foregoing, the claimant's recovery is limited to direct damages for the taking itself. The Court credits the appraisal of Mr. Gardner that the highest and best use of the property was for high traffic retail with a value of $8.25 per square foot. Direct damages in the amount of $83,713.00 are, therefore, awarded for the direct taking of 10,147 square feet of claimant's property. Claimant is awarded statutory interest from August 6, 2010 (date of filing with the County Clerk) to the date of this decision and thereafter to the date of entry of judgment hereon pursuant to CPLR 5001 and CPLR 5002; EDPL § 514; Court of Claims Act § 19 (1) and subject to Court of Claims Act § 19 (4).
As nothing in the record established the date of personal service of the notice of acquisition on the claimant, interest on the award should not be suspended pursuant to EDPL 514 (B) for any period preceding the filing of the claim (Sokol v State of New York,272 AD2d 604 [2000]).
The award herein is exclusive of the claims, if any, of persons other than the owners of the appropriated property, its tenants, mortgagees and 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 the claims, if any, for the value of or damage to easements and appurtenant facilities for the construction, operation, and maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer, and 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 made during the trial or in the post-trial briefs and not specifically addressed in this decision are denied.
Let judgment be entered accordingly.
February 20, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims