In re the Acquisition of Real Property by the State

hamlet.^[1] At trial, claimant presented the report and testimony of a professional engineer who opined that petitioner’s appropriation, and the corresponding restrictions to vehicular and utility access that resulted, severely limited claimant’s ability to develop the western portion of its land for its highest and best use. Claimant also presented the appraisal report and testimony of Laurence Farbstein, a licensed real estate appraiser, who opined that the highest and best use of the parcel, both before and after the appropriation, was for commercial development consistent with the zoning requirements. Farbstein valued the land before the taking at $2,360,000 and after the taking at $350,000, thus estimating total direct and consequential damages to be $2,010,000.

On the other hand, petitioner offered the appraisal report and testimony of Jacqueline Conti, a certified general real estate appraiser. Conti’s appraisal report misidentified the zoning of claimant’s property at the time of the appropriation as residential. Concomitantly, she opined that the highest and best use of the property, both before and after the sale, was for residential development and valued the direct damages for the taking of claimant’s property at $211,000. Conti further opined that the value of the entire property before the appropriation was $773,000 and that the value after the appropriation was $574,000; as the differential was less than the direct damages assessed, she concluded that claimant did not suffer any consequential damages.

The Court of Claims declined to consider Farbstein’s opinion on valuation, finding that it was unable to engage in meaningful review of his appraisal. The court further found that claimant’s property would not have been rezoned absent the bypass extension and concluded that, inasmuch as it was not permitted to take into account any enhancement in value attributable to the reason for the appropriation itself, the highest and best use of the land — both before and after the taking — was for residential development. Relying primarily on Conti’s residential comparable sales as a baseline, with some of its own adjustments, and finding that claimant had sustained some consequential damages to the western parcel of its property due to limited access, the court determined that claimant suffered total damages of $532,000 as a result of the taking.

Initially, the Court of Claims properly rejected Farbstein’s

valuation opinion based upon his failure to use his experience to factor in dollar or percentage adjustments to the comparables he used and explain his calculations (see Latham Holding Co. v State of New York, 16 NY2d 41 , 45-46 [1965]; Chester Indus. Park Assoc., L.P. v State of New York, 103 AD3d 827 , 828 [2013], lv denied 21 NY3d 856 [2013]; Matter of County of Dutchess [285 Mill St.], 186 AD2d 891 , 891-892 [1992]).^[2] Nevertheless, we are of the view that the Court of Claims erred in valuing claimant’s property based upon residential development as its highest and best use. While it is indeed well settled that a condemnee may not receive an enhanced value for its property when the enhancement can be exclusively attributed to the reason for the taking itself, we find that petitioner failed to demonstrate that “but for” the bypass extension, claimant’s property would not have been rezoned (Matter of City of New York v Zahav LLC, 106 AD3d 418 , 418-419 [2013]; see Latham Holding Co. v State of New York, 16 NY2d at 47 ; Matter of Queens W. Dev. Corp., 289 AD2d 335 , 336 [2001]).

The record before us demonstrates that the change in zoning of the subject property — which notably occurred prior to the taking — was part of a comprehensive rezoning of the entire town and included many other parcels zoned with the new hamlet and commercial hamlet designations, both in the area of the bypass extension, as well as areas far removed from that project. Further, George Leveille, who served in several capacities for the town, including as the Director of Planning and Economic Development and staff leader for the promulgation of the comprehensive plan, testified that there had been a longstanding desire to develop a master plan for the community and that the town recognized a need to diversify its tax base to provide for a balance between residential and commercial properties to better support public services. As such, while Leveille stated that the bypass extension was “material” to the rezoning of the subject property, he opined that the extension was only one of many factors considered in the town’s enactment of the new zoning ordinance. Accordingly, we find that the court erred in determining that the highest and best use of claimant’s property was for residential development^[3] and, correspondingly, we

find that the appraisal submitted by petitioner’s expert premised on such use was of no probative value.^[4]

“The predominant rule in condemnation cases ... is that [i]n determining an award to an owner of condemned property, the findings must either be within the range of [the] expert testimony, or be supported by other evidence and adequately explained by the court” (Lerner Pavlick Realty v State of New York, 98 AD3d 567 , 568 [2012] [internal quotation marks and citations omitted]). Here, because the appraisals of both parties’ experts were flawed, leaving the trial court — and this Court upon review — without competent proof on which to base its valuation, we are constrained to remit the matter to the Court of Claims for further proceedings to determine the valuation of claimant’s property and the calculation of claimant’s damages based on the property’s highest and best use as hamlet and commercial hamlet lands (see Matter of Bell v Village of Poland, 281 AD2d 878 , 879 [2001]; Matter of Iroquois Gas Transmission Sys., 226 AD2d 808 , 809-810 [1996]; Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280 , 282 [1994]). In light of our holding, we need not address the parties’ remaining contentions.

Lahtinen, J.E, Egan Jr. and Clark, JJ., concur.

Ordered that the judgment and order are reversed, on the law, without costs, and matter remitted to the Court of Claims for further proceedings not inconsistent with this Court’s decision.