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SLIDE MOUNTAIN REALTY CO. v. STATE NEW YORK (05/27/69)

COURT OF CLAIMS OF NEW YORK Claim No. 47480 1969.NY.41733 <http://www.versuslaw.com>; 306 N.Y.S.2d 519; 61 Misc. 2d 708 May 27, 1969 SLIDE MOUNTAIN REALTY CO., INC., CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Ward W. Ingalsbe, Jr., for claimant. Louis J. Lefkowitz, Attorney-General (Joshua J. Effron of counsel), for defendant. Milton Alpert, J. Author: Alpert


Milton Alpert, J.

Author: Alpert

 This is a claim for the appropriation of claimant's land pursuant to section 30 of the Highway Law, which proceedings are described as Ulster-Delaware, Part 1, S. H. 16, Ulster County, Map No. 89, Parcel Nos. 125, 126, 127, 128, 129 and 130 (in the Town of Shandaken) and as Coldbrook-Beechford and Ashokan Reservoir, S.H. No. 1186, Ulster County, Map No. 9, Parcel Nos. 9, 10, 51 and 52, and Map No. 33, Parcel No. 48 (in the Town of Olive).

[Technical description of land taken omitted.]

The highest and best use of claimant's property before the appropriation was for development and was the same after the appropriation.

Claimant's appraiser appraised the Town of Olive property and the Town of Shandaken property separately. In the Town of Olive, where claimant owned 195.026 +- acres before the appropriation, the appraiser divided the land into building lots, the dam site and various acreage plottages. He valued the 30 building lots at $2,500 each for a total of $75,000; added an adjacent small half-acre plot at $1,200, the dam site of approximately one acre at $2,500, and two and one-half acres immediately east of the dam site (including a portion of the pond) at $5,000. To this he added the 95.026 +- acres directly east of the pond area at $500 per acre for a total of $47,513. Another 36 +- acres further east of Route 28 and south of the Coldbrook Road he valued at $300 per acre for a total of $10,800 and another area further east of the 36 +- acre area and also south of Coldbrook Road, he valued at $750 per acre for a total of $30,000. This produced an over-all total value of the land appraised in the Town of Olive of $172,013.

The appropriations in the Town of Olive took eight of the claimed building lots with the exception of two lots where a small portion remained that might be sold off together (see claimant's Exhibit 8 in evidence and claimant's appraisal pages 6 and 7) for a total value of $19,500; the one-half acre plot at $1,200, the dam site at $2,500, and the dam and spillway which he valued at a replacement cost of $43,000 for a total direct damage of $66,200. To this he added $4,000 for a cost to make the pond the same size as before the appropriation. He consequentially damaged the second row of the claimed building lots at 50% or $6,250. The remaining lands were undamaged. He stated that his after value of the Town of Olive holdings was $95,563 and that the total damage relating to lands in the Town of Olive and as detailed above, was $76,450.

In the Town of Shandaken, the claimant's appraiser valued the lands on an acreage basis. He appraised 2.68 +- acres on the west side of Route 28 at $100 per acre for a total of $268. The 13.3 +- acres fronting on the west side of Route 28 for 1525 +- feet he valued at $3,000 an acre, or $39,900. The 13.760 +- acres lying to the rear of such western frontage acres, he valued at $1,000 per acre or $13,760. On the east side of Route 28, he valued 12.9 +- acres with 1675 +- feet of frontage also at $3,000 an acre or $38,700 and the 15.1 +- acres to the rear of such eastern frontage at $1,000 per acre or $15,100. He valued the remaining 23.5 acres further to the rear of such eastern frontage at $100 per acre for $2,350. The total value of the claimant's land in the Town of Shandaken was valued at $121,517 before the appropriation ($110,078 for lands not taken plus $11,439 for 4.87 acres directly taken; claimant's appraisal pages 10 and 12). To the lands remaining in the Town of Shandaken after the appropriation he attributed a value of $65,004.80*fn* resulting in a damage amount of $45,073.20.*fn* Of this damage amount $11,439 was direct damage for the acreages taken valued at $3,000 per acre, with the exception of 1.090 +- acres which he valued at $100 per acre. The balance was consequential damage to the remainder -- a 50% damage to 12.925 +- acres on the west side of Route 28, or $19,387 and a similar damage to 9.498 +- acres on the east side of Route 28, or $14,247.

The State's appraiser also valued the holdings in each town separately. In the Town of Olive he valued the 25 +- acres of frontage at $2,500 per acre, or $62,500; the 100 +- acres to the rear at $500 per acre for a total of $50,000, and the 60 +- acres on the town road at $125 per acre for a total of $7,500. This produced an over-all total before value for the lands in the Town of Olive of $120,000.

In the Town of Shandaken, the State's appraiser valued the frontage acreage at $1,500 per acre for a total of $67,500 for the 30 +- acres on the west side of Route 28 and the 15 +- acres on the east side. The 41 +- acres to the rear of the east side frontage he valued at $125 per acre for a total of $5,125. This produced a total before value of $72,700. This gave him an over-all total rounded before value for the lands in both towns of $193,000.

After the appropriation, he valued the remainder in the Town of Olive at $100,935 and in the Town of Shandaken at $63,978. He totaled these at $165,000 (rounded). Subtracting the latter from his over-all before value of $193,000, he arrived at a total damage of $28,000. Of this, $19,650 represented direct damage, $8,350 consequential damage and $200 rental of the temporary easement.

After careful consideration of the testimony at the trial, the appraisals and exhibits in evidence, the demeanor of the witnesses, and the court's view of the subject property, the court finds as follows:

1. The attorneys agreed at the outset of the trial that the temporary easement -- Map 33, Parcel No. 48 -- should be valued on a rental basis of $200 for the duration of the temporary easement. The court, accordingly, adopts such $200 figure for such rental for the duration of such temporary easement.

2. With respect to the lands taken by the State in the Town of Shandaken, both appraisers viewed only the frontage land as having been damaged. While they valued back acreages, they both agreed that these were not damaged as the result of the State's takings. Accordingly, the court will not find before and after values of such back areas. The court will value only the frontage areas.

The court adopts the State's appraiser's before valuations of frontage acreage at $1,500 per acre for a total of $67,500 for the 30 +- acres on the west side of Route 28 and 15 +- acres on the east side of Route 28 (State's appraisal, page 17).

The State's takings in the Town of Shandaken were by Map 89, Parcels No. 125 -- 3.351 +- acres on the east side, No. 126 -- 1.058 +- acres on the east side, No. 127 -- .345 +- acres on the west side and No. 128 -- .032 +- acres on the west side, totaling 4.786 +- acres as fee takings, and No. 129 -- .051 +- acres on the east side and No. 130 -- .030 +- acres on the west side totaling .081 +- acres as permanent easement takings.

The court adopts the claimant's appraiser's view that the permanent easement takings should be valued as fee takings (claimant's appraisal, page 11).

The court finds that there was no consequential damage as the result of the takings of Parcels Nos. 125, 127, 129 and 130, but that there was consequential damage as the result of the takings of Parcels Nos. 126 and 128, both of which were at the southerly end of claimant's property in the Town of Shandaken. Such consequential damage resulted because the highway was raised some 15 to 20 feet along claimant's remaining property in this area (State's appraisal, page 24). On the east of Route 28, 2 +- remaining acres west of the brook and on the west of Route 28, 2.648 +- remaining acres were so damaged. The court adopts the State's appraiser's view that areas so damaged had an after value of $500 per acre (State's appraisal, page 26) and on the basis thereof finds that these 4.648 +- acres had an after fair market value of $500 per acre. Based on a before fair market value of $1,500 per acre and an after fair market value of $500 per acre, the court finds that there was a consequential damage of $4,648 on account of the takings of Parcels Nos. 126 and 128 which the court hereby rounds to $4,650.

The court finds that the remainder of claimant's property in the Town of Shandaken had the same after fair market value per acre as it had before the takings of Parcels Nos. 125, 127, 129 and 130. Accordingly, it becomes necessary only to total the four fee and two permanent easement taking areas, which total to 4.867 +- acres, and to multiply the same by $1,500 per acre to compute the direct damage as the result of the takings in the ...


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