Opinion
# 2019-031-510 Claim No. 126280
01-16-2020
WASHING TECHNOLOGIES, LLC v. THE STATE OF NEW YORK
HARRIS BEACH PLLC BY: PHILIP G. SPELLANE, ESQ. and THOMAS P. SMITH, ESQ. HON. LETITIA JAMES New York State Attorney General BY: KEVIN A. GROSSMAN, ESQ. and CHRISTOPHER WILES, ESQ. Assistant Attorneys General
Synopsis
Claimant awarded $34,600.00 on appropriation claim.
Case information
| UID: | 2019-031-510 |
| Claimant(s): | WASHING TECHNOLOGIES, LLC |
| Claimant short name: | WASHING TECHNOLOGIES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126280 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | RENÉE FORGENSI MINARIK |
| Claimant's attorney: | HARRIS BEACH PLLC BY: PHILIP G. SPELLANE, ESQ. and THOMAS P. SMITH, ESQ. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: KEVIN A. GROSSMAN, ESQ. and CHRISTOPHER WILES, ESQ. Assistant Attorneys General |
| Third-party defendant's attorney: | |
| Signature date: | January 16, 2020 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Washing Technologies, LLC, filed claim number 126280 on June 12, 2015, claiming the State's appropriation of its land, pursuant to the New York Eminent Domain Procedure Law (EDPL) and section 30 of the Highway Law, damaged it both directly and indirectly. The Notice of Appropriation, with the maps and descriptions of the appropriated property, was filed with the Cortland County Clerk on October 30, 2014 (Map No. 186, Parcel Nos. 213 & 214 [Fee]; Map 208, Parcel No. 246 [Temporary Easement]) (Claim, exhibit A). I adopt these maps and descriptions and incorporate them by reference. The State has complied with the necessary procedures under the EDPL 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.
Hon. Nicholas V. Midey, Jr. tried this matter on June 13, 2018. Post-trial briefs were submitted March 14, 2019 and, upon Judge Midey's retirement, the file was transferred to the Hon. Renée Forgensi Minarik on April 29, 2019. The parties consented to have me issue the decision once I conducted a review of the full and complete record and considered the post-trial briefs. Having completed my review of the full record and having viewed the property, and upon consideration of the post-trial briefs, I make the following findings.
Stipulation and Order filed June 10, 2019.
The parcel is located at 1087 NYS Route 222, Town of Cortlandville, Cortland County, situated near the northeast corner where Route 222 intersects with Route 281. It is an improved parcel, formerly operated as a Kentucky Fried Chicken fast food restaurant. The parties agree that the valuation date is October 30, 2014 and that the assessed value of the subject property is $147,900.00 (exhibit 1, p. 39; exhibit A, p. 5).
The site before the taking was a level, L-shaped parcel of 18,767 square feet with approximately 88 linear feet of frontage on the north side of Route 222 and approximately 32 linear feet of frontage on the east side of Route 281 (exhibit 1, p. 27; exhibit A, p. 46). Two access easements encumber the parcel. One is along the north property boundary line on Route 281, approximately 31 feet wide, to the eastern most property line, where it narrows to approximately 27 feet wide. This easement is approximately 4,740 square feet and provides access to the parcel from Route 281 (exhibit 1, p. 29). From Route 222, there is a 24 foot wide strip of land on the eastern boundary line of the parcel to the edge of the first easement, approximately 2,580 square feet (exhibit 1, p. 29). New York State Electric & Gas Corporation (NYSEG) also possesses a 10 foot wide easement along the western boundary line of the parcel that makes a 90 degree turn east where it partially overlaps the two access easements where they join. I note that the building on the parcel abuts the western boundary line and is partially inside the easement (exhibit 1, p. 26). A fourth easement to the Town of Cortlandville, for water and sewage, approximately 2,580 square feet, exists at the southern boundary line of the site along Route 222 (exhibit 1, p. 43).
Claimant purchased the property on June 19, 2012 for $155,000.00, subject to the easements described above, as well as a restrictive covenant not to sell, lease or otherwise transfer the parcel to any fast food type restaurant that sold primarily chicken (exhibit A, p. 14; tr at 58). The parcel sold for $250,000.00 in 2008 and for $85,000.00 in 2011. The 2011 sale was an alleged non-arm's length transaction. It was also listed for sale two times in recent history. In 2011 it was listed for $199,000.00 and in 2012-2013 it was listed for $315,000.00. The listing for $315,000.00 was withdrawn once the seller knew about the potential appropriation (exhibit 1, p. 38).
References to transcript are referred to as tr @ page number.
A property owner is entitled to just compensation for land appropriated by the State for public use. The owner is to be "placed in the financial position that he or she would have occupied had the property not been taken (citations 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 (citations omitted)" (Matter of State of New York [KKS Props., LLC], 119 AD3d 1033, 1034 [3d Dept 2014]).Highest and Best Use
The State determined the highest and best use of the unimproved land, before the taking, to be commercial. As improved, the State also considered the highest and best use to be commercial (exhibit A, pp. 59-61, 92). Claimant maintains the highest and best use to be a small-scale food service both before and after the taking (exhibit 1, pp. 44, 78). Claimant stated no opinion on the highest and best use of the property as unimproved.
Claimant purchased the property in 2012 when it was a vacant, aging fast food restaurant. Although he has done nothing to renovate the interior, he repaired the roof and painted the exterior. Claimant testified that he fields approximately three inquiries a year from people interested in leasing the property, but provided no testimony or proof as to the purpose for which it would be leased, nor does he know what he is going to do with it moving forward (tr at 59-60).
The building sits almost flush with the western boundary line and well into the NYSEG easement. It does not impede either access easement, nor does the asphalt driveway on the east, which is used for a drive-up window. The whole parcel consists of approximately 9,868 square feet of unencumbered area(exhibit A, p. 65). The parcel sits in the Highway Commercial Business B2 District of the Town of Cortlandville Zoning Code which permits professional offices, personal services, retail, restaurants, banks and auto sales, among other uses. The code requires conditional permits for more intensive uses such as auto repair, car washes and outdoor and drive-in restaurants (exhibit A, p. 55).
Excluding the NYSEG and Town of Cortlandville easements.
The parties agree that the building is structurally sound, but that the interior is dated, worn and in need of renovation. It could be used as a fast food restaurant but, as Defendant opines, another commercial use may be more profitable, but this is conjecture. I note that parking will be an issue due to the access easements and the small size of the unencumbered land. I adopt Claimant's position that the highest and best use of the property both before and after the appropriation is a small-scale food service.
LAND VALUE - DIRECT DAMAGES
The State's appraiser, E. Anthony Casale, performed a land valuation using data collected from sales in the neighboring vicinity. I adopt his analysis and conclusion and find $6.50 per square foot a reasonable value. Therefore, the land before the taking is valued at $122,000.00 (as rounded) (exhibit A, p. 69). I also agree that the $6.50 per square foot value was appropriately applied post-taking, making the after value of the land $112,575.00 (as rounded) (exhibit A, p. 94). Claimant has been directly damaged in the amount of $9,425.00 (as rounded), $6.50 per square foot for 1,448 square feet taken by the State (as rounded).
SITE IMPROVEMENTS - DIRECT DAMAGES
The support structures for two identification signs were taken as part of the appropriation (tr at 19, 33). The signs themselves had already been removed (tr at 60). In addition, on the Route 222 side, some curbing and landscaping and asphalt were also taken (tr at 39) (exhibits 5, 6), as well as a directional sign (exhibit 1, p. 70). Claimant provided several price quotes. The Alex Cole Paving Inc. quote was a lump sum $15,000.00 for the relocation of two large signs and two small signs (exhibit 1, p. 72). Rapp Signs provided two proposals. One proposal (exhibit 1, p. 74) involved replacing the signs in addition to the support structures, which I will not consider, as no signs were present at the time of the taking. The second proposal (exhibit 1, p. 73) involves only the signs' support structures. The structure with two steel posts designed to hold a 14-foot electric identification sign cost $7,325.00. The structure with one steel post designed to hold an 8-foot electric identification sign cost $4,850.00. A third directional sign was also included in the quote for $650.00. I award Claimant $12,825.00 for the replacement value of the signs' structural supports.
Alex Cole Paving Inc. provided a proposal for work related to the subject property and Squeaky Clean Car Wash on the adjoining parcel. The asphalt taken amounted to approximately 1,125 square feet. The proposal covered 15,000 square feet of asphalt at $90,000.00 or $6.00 per square foot. Thus, I award Claimant $6,750.00 for the asphalt (1,125 square feet x $6.00). The proposal also included 180 linear feet of concrete curbing for $12,000.00 or $67.00 per linear foot. I award Claimant $2,412.00 for 36 linear feet of concrete curbing at $67.00 per linear foot. The proposal quoted $3,000.00 for landscaping covering both properties. I award $1,500.00 for the 323 square feet of landscaping taken in the appropriation. I award Claimant a total of $23,487.00 as direct damages for site improvements.
INDIRECT DAMAGES
Indirect damages, also referred to as consequential damages, represent "the diminution in value of the owner's remaining land as a result of the taking or the use of the property taken (citations omitted)" (id.). Claimant bears the burden of proof and is charged with giving the fact-finder a basis upon which a reasonable value can be determined. The value must be within the range of expert testimony. If not, the value must be supported by other evidence and explained by the court (Matter of Eagle Cr. Land Resources, LLC [Woodstone Lake Dev., LLC], 149 AD3d 1324, 1326 [3d Dept 2017], lv denied, 29 NY3d 916 [2017]).
I find that Claimant has failed to prove he suffered indirect or consequential damages as a result of this appropriation, therefore, I make no award for this item of damages.
TEMPORARY EASEMENT
Claimant has accepted the State's value of $1,700.00 for the temporary easement (tr at 10; exhibit A, p. 5).
SUMMARY
Direct Damages:
Land 1,448 square feet at $6.50/square foot = $9,425.00 (as rounded)
Site improvements = $23,487.00
Temporary Easement: $1,700.00
Total damages awarded to Claimant are $34,612.00.
Therefore, Claimant is entitled to an award of $34,612.00, with statutory interest from the vesting date of October 30, 2014 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]).
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.
January 16, 2020
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims