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MATTER COUNTY NASSAU (10/18/68)

SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY


October 18, 1968

IN THE MATTER OF THE COUNTY OF NASSAU, RELATIVE TO ACQUIRING TITLE TO REAL PROPERTY FOR THE ALIGNMENT OF MERRICK ROAD IN THE INCORPORATED VILLAGE OF LYNBROOK, TOWN OF HEMPSTEAD

Howard T. Hogan, J.

Author: Hogan

 In this proceeding in eminent domain the County of Nassau has vested title on January 5, 1966 to several parcels of land fronting on Merrick Road in the Incorporated Village of Lynbrook for the purposes of realigning Merrick Road. The court has, in a prior decision in this proceeding, commented upon this mercantile area known as the "five corners".

The case at bar concerns several parcels all of which were owned by the Meadowbrook National Bank now National Bank of North America. On the date of vesting, the county has taken not only the front footage located within the new right of way but also excess lands. The entire parcel contains frontage on three streets: Merrick Road on the North, Atlantic Avenue on the West and Washington Avenue on the East.

This property owned by the claimant is composed of several different lots which are improved in varying manners. It is of assistance to outline the several parcels and set forth their square footage and the nature of their improvements:

Total Area in Area

Square Feet Taken Improvements

23-23X 3,728 All 3-story brick commercial bldg.

24-24X 4,383 All 1-story stone bank building.

25-25X 2,997 All 1-story brick and stone bank

addition.

26 Inc. Tax Lot 23 11,903 2,979 2-story drive-in banking

structure and paving.

27 Inc. Tax Lot 1 12,249 3,277 Asphalt paving.

In addition, not physically taken but in common ownership:

Tax Lot 325 660 0 Unimproved

20 2,020 0 1-story commercial building

3-story commercial building.

These parcels have been purchased by the bank over a period of years; damage parcel 26 in 1953, parcel 27 in 1957, 25 and 25X in 1959, 23 and 23X in 1964. Tax lot 20 was purchased in December of 1965, one month prior to vesting for $46,000.

The appraiser for the bank envisaged the demolition of all improvements on this site and the erection of a new modern bank building on the entire parcel as it existed prior to the taking. In this regard, he produced a set of blueprints which had been prepared for the bank in 1964 showing such improvements.

With respect to valuation, he submitted a list of 12 comparable sales and relied primarily upon a series of purchases by First National City Bank of assembled parcels of land upon which it constructed a new bank facility in the Incorporated Village of Rockville Centre. He found an indicated value per square foot of $16 for the subject parcel but did not adopt any value for the improvements on the subject parcels as they required demolition in light of his highest and best use.

The appraiser for the petitioner approached the problem by calculating "appraisal" square footage and ascribing a unit value per appraisal square foot. This connotes the consideration of appraisal factors concerning the utility of the subject property. He applied increments to the actual square footage for such benefits as plottage, corner frontage, triple street frontage, key influence and conjunctive use and the Davies rule-of-depth factor. To the resultant total of appraisal square feet, he applied a unit land value of $7.50 per appraisal square foot for commercial usage.

The bank building and auto teller were analyzed on a summation approach while the commercial building on parcel 23 was valued under a capitalization approach. Tax lot 325 was valued as vacant land and tax lot 20, the commercial structure purchased one month prior to vesting, was valued at its actual purchase price, $46,000 both before and after the taking on the theory that its purchase so close to vesting would establish the before value and that the parcel's utility was not impaired by the taking of the contiguous parcels.

The remainder of the entire parcel consists of two tax lots formerly used for parking and containing 17,896 square feet. This remainder was analyzed by petitioner's appraiser at $3.50 after adjusting for the Davies formula and for corner increment, key increment and plottage, to arrive at a total appraisal area of 21,096 square feet. Tax lot 325 was valued at $1,035.

The valuations set forth by the respective appraisers may be summarized as follows:

Claimant:

Before: Land

38,010 sq. ft. at $16 $608,160

Bank building sound value 232,300

Vault 21,930

$862,390

After: Land

D.P. 26 & 27

17,364 sq. ft. at $6 $104,184

Tax Lots 20 & 325

2,750 sq. ft. at $2.50 6,875

Improvements

Commercial structure Lot 20 21,730

$132,789 The damage of $629,601 he apportions between direct $576,054 and severance at $132,789.

Petitioner:

Land before:

D.P. 23-23X

5,028 appraisal sq. ft. at $7.50 $37,700

D.P. 24-24X, 25-25X, Lot 325

9,568 appraisal sq. ft. at $7.50 71,750

D.P. 26-27, Lots 23 & 1

31,898 appraisal sq. ft. at $3.50 111,500

$220,950

Improvements:

D.P. 23-23X Commercial building 20,300

D.P. 24-24X

25-25X

26, 27 Bank and parking lot 115,300

Lots 325, 23

and 1

Subtotal before: $356,550

Lot 20 46,000

Total before: $402,550

After:

Remainder Lots 1 & 23

21,096 appraisal sq. ft. at $3.50 73,836

Lot 325

138 appraisal sq. ft. at $7.50 1,035

74,871

Rounded to: $75,000

Lot 20 46,000

$121,000

The total damage he therefore calculated to be $281,550, of which $13,550 represents severance damage.

The court finds that the approach utilized by petitioner's appraiser is the more desirable in this case. While the claimant's appraiser did submit the proposed plans for a new building, there is no evidence that anything was accomplished to further the plan, nor that any lack of accomplishment was due solely to the condemnation. The mere fact that the entire complex of properties herein was in common ownership at the time of vesting does not mandate their valuation as a unit. (Nichols, Eminent Domain [3d ed.], ยง 14.31 et seq. See, also, this court's decision in the Matter of County of Nassau [ Massapequa-Woodbury Rd.], Sept. 30, 1968.)

However, it is quite clear that "it is competent to show the general character of the business to which the property is adaptable, since property desirable or available for business of a certain character commands higher prices than property only suitable for business of another character" (19 N. Y. Jur., Eminent Domain, pp. 381-382, and cases cited therein).

The facts in this case clearly demonstrate that property suited for a bank site is more desirable than other commercial property without such potential. Applying the stated principles to the facts in this case, the court will value parcels 24-24X, 25-25X, 26 and 27 on the summation basis utilized by both appraisers, and parcel 23 and 23X under the capitalization approach of petitioner's expert.

The county contends in its posttrial memorandum of law that the bank building should not be valued as a specialty in light of the court's application of a capitalization approach in the valuation of another bank building in this proceeding (see parcel 17 and 17X herein, N. Y. L. J., Aug. 16, 1968, p. 10, col. 3). In that case, however, the building had been adopted for use as a hardware store and so used for over 30 years. Any special use for that structure had long since terminated, its value was as a commercial building, and there was substantial proof of its value as a commercial structure.

It is difficult to accurately compare the conclusions of the appraisers without placing them upon a common ground. Petitioner's approach multiplied the number of appraisal square feet by the value discerned from his comparable sales of $7.50 per appraisal square foot.

Dividing the actual square feet of the different parcels into the petitioner's total valuation for each results in a value per actual foot of the several parcels. The court has done this in the following table:

Value Before: Value per Value per

Estimated Total Actual Appraisal Actual

Parcel Value Square Feet Square Feet Square Feet

23-23X $37,700 3,728 $7.50 $10.11

24-24X

25-25X 71,750 8,040 7.50 8.92

Lot 325

26-27 111,500 24,152 3.50 4.62

Lot 23 & 1

Value After:

Lot 325 1,035 660 7.50 1.57

Lots 1 & 23 73,836 17,896 3.50 4.13 The range of values, then, for the actual square footage involved before the taking is from $4.62 for the parking lot area to $8.92 for the parcels utilized as a bank, to $10.11 for the corner commercial structure.

The series of claimant's comparable sales of land utilized in the assembly of a new site for a bank in Rockville Centre are of prime importance. Petitioner's expert included one of these, his sale 22, as the only sale involving a banking institution. This common sale, claimant's number 2 and petitioner's number 22, reflected a value of $10.21 per actual square foot in February, 1964, and the petitioner's expert interpreted this value as $9.85 per appraisal square foot for an interior parcel. In fact that comparable parcel was directly benefited by frontage on a new municipal parking lot and the entrance road to the parking area. The remainder of claimant's comparable sales in the Rockville Centre assemblage range to $16.66 in claimant's sale No. 9.

The court adopts petitioner's approach of attributing increments to the subject properties to arrive at appraisal square feet, and finds that petitioner's increments are accurate throughout. Ultimate findings however will be made in terms of value per actual square foot as petitioner's appraiser has done in his analysis of severance damage. Moreover, the court does not accept the basic value of $7.50 per appraisal square foot.

The common comparable at $10.21 per actual square foot is of prime importance, and the remainder of the Rockville Centre sales indicates the range of prices which must be paid to assemble a bank site within the commercial confines of an incorporated village. Analyzing the common sale in light of claimant's sales, and their range up to $16.66, the court finds that sale No. 2 must be adjusted upward by 30 cents per square foot for an indicated land value of $10.50 per appraisal square foot for the subject property. The testimony of claimant's expert concerning the relative desirability of the subject parcels and the Rockville Centre properties is somewhat confused, but the unique desirability of the "five corners" vicinity is well established, particularly for a parcel with ample on-site parking.

The commercial building on lot 23 and 23X, however, will be valued by petitioner's over-all capitalization approach, which led to a choice of value for the property of $58,000 for both land and building. The County Attorney has objected to this court's decision in parcel 20 and 20X of this proceeding concerning the court's apportionment between land and building of an award made on the basis of an over-all capitalization approach, and the value found herein will accordingly not be apportioned. (Matter of County of Nassau [ Merrick Rd.], N. Y. L. J., June 12, 1967, p. 21, col. 1 [Sup. Ct., Nassau County]; N. Y. L. J., Oct. 30, 1967, p. 22, col. 4.)

It should be observed, however, that applying the land value of $10.50 found by the court to the 5,028 appraisal square feet proffered by petitioner's appraiser, the result is $52,794, which, when compared with the economic valuation of $58,000, would tend to support the feasibility of the eventual demolition of the existing structure for replacement with a new banking facility.

The utility of lot 20 is not, in the court's opinion, diminished by the taking of the adjacent parcels. It was purchased one month prior to vesting for $46,000, which, absent convincing proof to the contrary, established its value before the taking. It lost neither frontage nor access as a result of the taking, and while it is no longer available for part of a potential bank site, its value as a commercial structure is separate and apart from any such use. Presumably, the bank as a knowledgeable purchaser, would pay only the fair market value for the property.

 The court adopts petitioner's valuation of the bank structure and other improvements and finds its expert more accurate with his depreciation factor of 53% for the 50-year-old structure than was claimant's 10%. The remaining parcels to be considered consist of the property presently used for banking purposes and for parking. Applying the court's value of $10.50 per appraisal square foot to the petitioner's appraisal area of 9,568 square feet, the value of these parcels is found to be $100,464. This reflects a value per actual square foot of $12.50.

Applying the $12.50 value to the 660 square feet comprising lot 325, the value for lot 325 as part of the bank complex is found to be $8,250 prior to the taking. The value after is found by the court to be $1.50 per actual square foot for 660 square feet, as was established upon the trial.

The petitioner valued D.P. 26 and 27 merely as part of the parking area. The court does not agree with such treatment, since these two parcels combined to give 180.76 feet of frontage on Merrick Road, and damage parcel 26 was in fact improved with a drive-in teller's window, an indispensable amenity for a suburban bank. The court values these two parcels at $12.50 per actual square foot, or $37,238 for damage parcel 26 of 2,979 square feet and $40,963 for damage parcel 27 containing 3,277 square feet.

The court adopts the indicated parking lot value of $4.62 per actual square foot before the taking and $4.13 after. The values for lots 23 and 1, with their combined 17,896 square feet, are accordingly $82,679 before and $73,910 following the taking.

Based upon the testimony, the exhibits, the appraisers and the court having viewed the property, the court finds and awards as follows:

Value Before:

D.P. 23-23X Land and building $58,000

D.P. 24-24X

25-25X8,040 sq. ft. of land at $12.50 100,500

Lot 325

D.P. 26 2,979 sq. ft. of land at $12.50 37,238

D.P. 27 3,277 sq. ft. of land at $12.50 40,963

Tax Lots 23 and 1

17,896 sq. ft. of land at $4.62 82,679

Improvements -- all 115,300

Lot 20 -- Land and building 46,000

$480,680

Value After:

Lots 1 and 23

17,896 sq. ft. at $4.13 $73,910

Lot 325

660 sq. ft. at $1.50 990

Lot 20 46,000

$120,900

The difference, or damage of $359,780, is apportioned as follows:

Direct

D.P. 23-23X

Land and building 58,000.00

D.P. 24-24X

4,383 sq. ft. at $12.50 54,787.50

D.P. 25-25X

2,997 sq. ft. at $12.50 37,462.50

D.P. 26

2,979 sq. ft. at $12.50 37,238.00

D.P. 27

3,277 sq. ft. at $12.50 40,963.00

Improvements 115,300.00

Total Direct Damage: $343,751.00

Severance

Lot 325

660 sq. ft. at $11.00 7,260.00

Lot 23 and 1

17,896 sq. ft. at 49 cents 8,769.00

16,029.00

19681018

© 1998 VersusLaw Inc.



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