Bruckner Expressway, Borough of Bronx, City of New York, In re

• Decision Date: 31 August 1968
• Citation: 297 N.Y.S.2d 171,58 Misc.2d 873
• Parties: In re BRUCKNER EXPRESSWAY, BOROUGH OF BRONX, CITY OF NEW YORK.
• Court: New York Supreme Court

Page 171

297 N.Y.S.2d 171

58 Misc.2d 873

In re BRUCKNER EXPRESSWAY, BOROUGH OF BRONX, CITY OF NEW YORK.

Supreme Court, Special Term, Bronx County, Part II.

Aug. 31, 1968.

Skinner, Bermant, Leddy & Raber, by Edward F. McShane, Samuel Goldstein & Sons, by Michael J. Goldstein, Peter H. Brandt and Hubert J. Brandt, Jahr & Abberman, by Alfred Jahr, Nathan L. Goldstein and

Joseph Z. Goldstein, Greco & Greco by Michael J. Greco, Roe & Kramer by Irving Milchman, Romano & Schenker by Anthony Romano and Paul Schenker, Victor S. Gettner, Amend & Amend, Langberg & Ringel, by Nathan Ringel, Bleakley, Platt, Schmidt, Hart & Fritz, by Thomas C. Platt, Herman G. Blumenthal, Charles Hollender, Foley & Hickey, by John Foley, Gallet Hecht & Fingerit, by Irwin K. Fingerit, Silberman & Grant, by David Silberman, New York City, for claimants.

J. Lee Rankin, Corp. Counsel, of the City of New York, Sydney Stern, Robert D. Joyce, and Isidore Heyman, New York City, of counsel, for the City of New York.

ARTHUR MARKEWICH, Justice.

In this proceeding, the City of New York acquired title in fee to certain real property, as described in the title, for the widening of Bruckner Expressway, together with certain temporary and permanent easements, and to certain park strips. Title vested in all parcels, except numbers 23A and P23, on June 1, 1966, upon entry of the condemnation order, and to the latter two parcels on November 4, 1966. The statutory view and numerous subsequent inspections were made by the Court. In April, 1967, hearings were held as to the valuation of 35 obviously residential parcels of those included in this proceeding, and a decision rendered thereon May 15, 1967, which, in due course, proceeded to final decree. This trial, of more than 40 court days in duration, was concerned with valuation of the remaining damage parcels in fee and all permanent and temporary easements; with one residential exception (Damage Parcel 28), the subject parcels may be generally described as commercial, or available for commercial and industrial use.

The problem of valuation must inevitably concern itself to an extent with trends and potentials. The area under consideration has developed at such a fast rate that witnesses who testified on the subject were unable to provide a comparison with any other area in the Bronx. Not only have changes in use and zoning been accomplished, but a strong trend continues in that direction, so that a practically universal change in the area to commercial use is found to be not only the great probability but, indeed, inevitable. That probability is an important influence in the market place and is to be considered regardless of the physical factors presently obtaining in ascertaining values. (Matter of Village of Garden City, 9 Misc.2d 693, 167 N.Y.S.2d 166, aff'd 4 A.D.2d 783, 165 N.Y.S.2d 1022, mot. for lv. to app. den. 3 N.Y.2d 708, 167 N.Y.S.2d LXXI; Valley Stream Lawns v. State of New York, 9 A.D.2d 149, 192 N.Y.S.2d 805; Masten v. State of New York, 11 A.D.2d 370, 206 N.Y.S.2d 672, aff'd 9 N.Y.2d 796, 215 N.Y.S.2d 508, 175 N.E.2d 166; City of Albany v. State of New York, 16 A.D.2d 163, 226 N.Y.S.2d 554; Albany Country Club v. State of New York, 19 A.D.2d 199, 241 N.Y.S.2d 604, aff'd 13 N.Y.2d 1085, 246 N.Y.S.2d 407, 196 N.E.2d 62.

One of the difficulties encountered during the trial was that, while the City's appraiser admitted the likelihood of a zoning change, the land units he adopted failed to reflect such probability. The sales offered by the City in the proceeding were not particularly relevant. There was agreement that values had risen considerably along Bruckner Boulevard and that the early sales failed to reflect the values at vesting date. The analyses of these sales were not helpful. For example, City Sale 22 took place in 1962; the existing building was demolished shortly after the purchase, and thus the purchase price was allocable to land only. City Sale 24 did not reflect the market value because the street upon which the sale fronted was not accessible. City Sale 27 was a part of a larger overall deal. City Sales 31, 39 and 40 were in residence zones at the time of the sale and have since been rezoned C2. City Sales 32, 33, and 34 were 1960 and 1961 sales, when values were considerably lower. City Sale 35 was a narrow strip, of value only to the adjoining owner. City Sale 36 was low marsh land along a creek, partly under water. City Sales 41, 42, and 43 were on the service road to Cross Bronx Expressway, a limited access highway; not only did Expressway traffic bypass these gas stations, but, in the latter two, the exits from the Expressway were at points beyond these gas stations.

City Sale 45 was a lease on DP36 and does give some indication of land value in the area of the taking. The City was unaware that this was a ground lease which excluded the land on Noble Avenue (Cl. Exh. CE), and would indicate a unit of $8.56 a square foot for C2 zoned land. Considering the fact that this was a 1955 lease and that values have since increased, little support is found for the City's $4.50 square foot unit. The ground lease to Carvel and the ground lease to the amusement park all analyzed at $15 a square foot. The ground lease on Castle Hill Avenue and Bruckner Boulevard to White Castle in a residence zone (R6) analyzed at $10 a square foot. The vacant land lease of DP 115 showed a land unit in 1962 of $12 a square foot. The lease on DP 74 analyzed at $9.90 a square foot.

'Rental value tends to prove fee value, because other things being equal, the income from property is a measure of its market value.' (Ettlinger v. Weil, 184 N.Y. 179, 183, 77 N.E. 31, 32.) Also see Matter of Blackwell's Island Bridge, 118 App.Div. 272, 103 N.Y.S. 441; Jamieson v. Kings County Elev. R. Co., 147 N.Y. 322, 41 N.E. 693. Factors of rental value should be given great weight by the Court, and dramatic changes in rental value accordingly have great significance in ascertaining land value. The City's expert did say that, when the Korvette Shopping Center was opened in 1964 in the subject area, a large influx of shoppers resulted. The values that had theretofore obtained in the vicinity became devoid of meaning as a consequence. Despite this, the expert's land units failed to reflect any significant increase whatever.

Nor did the expert give appropriate weight to land use. For example, he distinguished not at all between land used as a gas station and that otherwise employed. 'Common experience bears out what is said in McMichael's Appraising Manual (3rd ed.) at p. 361 concerning the valuation of land adjoining gasoline station property: 'A most striking fact revealed in connection with the valuation of gas station sites is that the value of land used for such purpose bears very little relation to the value of adjoining lands. It is frequently found that for the use to which such sites are being placed they are worth from five to ten times as much as adjoining land. * * * " (Breitel, J., Matter of City of New York (Throgs Neck Expressway), 16 A.D.2d 570, footnote at 575, 229...