County of Clinton, Matter of

• Citation: 612 N.Y.S.2d 496,204 A.D.2d 898
• Parties: In the Matter of the Acquisition of Real Property by the COUNTY OF CLINTON. County of Clinton, Respondent; Orel Gagnon et al., Individually and Doing Business as Morrisonville Septic Tank Service, Appellants.
• Decision Date: 19 May 1994
• Court: New York Supreme Court Appellate Division

Page 496

612 N.Y.S.2d 496

204 A.D.2d 898

In the Matter of the Acquisition of Real Property by the

COUNTY OF CLINTON.

County of Clinton, Respondent;

Orel Gagnon et al., Individually and Doing Business as

Morrisonville Septic Tank Service, Appellants.

Supreme Court, Appellate Division,

Third Department.

May 19, 1994.

O'Connell and Aronowitz (Leigh P. Cole, of counsel), Albany, for appellants.

Louis E. Wolfe, Co. Atty., Plattsburgh, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, WEISS and YESAWICH, JJ.

MERCURE, Justice.

Appeal from a judgment of the Supreme Court (Viscardi, J.), entered February 8, 1993 in Clinton County, which, in a proceeding pursuant to EDPL article 5, determined the compensation due claimants as a result of petitioner's acquisition of real property.

Claimants are former owners of 6.1 acres of land in the Town of Schuyler Falls, Clinton County, which they used for the disposal of septic waste for approximately 20 years prior to its appropriation by petitioner. In 1979, the Department of Environmental Conservation (hereinafter DEC) approved petitioner's application, which included claimants' property, for a permit to operate a sanitary landfill. Although the permit expired in 1982, petitioner continued to use the Schuyler Falls landfill. On December 1, 1985, petitioner appropriated the subject property for the purpose of using it as a sanitary landfill and offered claimants the sum of $6,357 as full payment. Believing this offer to be insufficient, claimants filed a claim pursuant to EDPL article 5 and a nonjury trial was conducted by Supreme Court. Following the trial, Supreme Court found that the highest and best use of the property was as a septic landfill and that its value was $9,644. Claimants thereafter moved for an additional allowance pursuant to EDPL 701, which was denied. A judgment was entered accordingly and claimants appeal, contending, as they did in Supreme Court, that their property should be valued at $305,000 based upon its highest and best use as a sanitary landfill.

The owner of property that has been taken in condemnation is entitled to just compensation (U.S. Const., 5th Amend.; N.Y. Const., art. I, § 7[a]. The standard for compensation generally is "market value at the time of appropriation, that is, the price a willing buyer would have paid a willing seller for the property" (Matter of Town of Islip [Mascioli], 49 N.Y.2d 354, 360, 426 N.Y.S.2d 220, 402 N.E.2d 1123). The highest and best use of the property should provide the basis for the appraisal "even though the owner may not have been utilizing the property to its fullest potential when it was taken by the public authority" (id., at 360, 426 N.Y.S.2d 220, 402 N.E.2d 1123; see, Matter of County of Suffolk [Firester], 37 N.Y.2d 649, 652, 376 N.Y.S.2d 458, 339 N.E.2d 154). However, "[a] use which is no more than a speculative or hypothetical arrangement * * * may not be accepted as the basis for an award" (Matter of City of New York [Shorefront High School-Rudnick], 25 N.Y.2d 146, 149, 303 N.Y.S.2d 47, 250 N.E.2d 333), unless it is so imminent that it would have a bearing upon the appropriate market (see, 51 NY Jur 2d, Eminent Domain, § 171, at 250). It is also settled that proper discounts must be made for the cost that would be incurred if the land were developed for a particular use as its highest and best use (see, Village of Massena v. 50,500 Square Feet of Land, 9 A.D.2d 980, 195 N.Y.S.2d 733; Metzner v. State of New York, 59 Misc.2d 603, 300 N.Y.S.2d 65, affd. 43 A.D.2d 774, 350 N.Y.S.2d 788).

As a general rule, "in appraising land the fundamental question to be answered is 'what has the owner lost, not what has the taker gained' " (St. Agnes Cemetery v. State of New York, 3 N.Y.2d 37, 41, 163 N.Y.S.2d 655, 143 N.E.2d 377, quoting Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195, 30 S.Ct. 459, 460-61, 54 L.Ed. 725; see, Matter of Town of Hempstead, 81 A.D.2d 591, 595-596, 437 N.Y.S.2d 451 [Lazer, J., dissenting], revd 56 N.Y.2d 1020, 453 N.Y.S.2d 642, 439 N.E.2d 357). Thus, the value of the land for the particular use for which it is taken, the strategic location of the land and the fact that it would cost the taker more to appropriate other lands for the use for which the land is taken have no place in determining compensation (see, Matter of Metropolitan Transp. Auth. v. Capolino Design & Renovation, 123 A.D.2d 696, 507 N.Y.S.2d 63, lv denied 69 N.Y.2d 610, 517 N.Y.S.2d 1025, 511 N.E.2d 84; New York Tel. Co. v. Wadle, 111 A.D.2d 791, 490 N.Y.S.2d 540, lv. dismissed 66 N.Y.2d 602, 759, 497 N.Y.S.2d 1025, 488 N.E.2d 116; Matter of Niagara, Lockport & Ontario Power Co. v. Horton, 231 A.D. 402, 247 N.Y.S. 761; 51 NY Jur 2d, Eminent Domain, § 178, at 264). It is also recognized, however, that if the special adaptability of the land would increase its value in the open market, apart from the needs of the particular taker, the owner may be entitled to such increase as a part of its market value (see, Matter of City of New York [New Gen. Hosp.], 280 A.D. 196, 112 N.Y.S.2d 101, affd. 305 N.Y. 835, 114 N.E.2d 38; 51 NY Jur 2d, Eminent Domain, § 178, at 265).

Here, relying upon Matter of Town of Esopus (Gordon), 162 A.D.2d 829, 557 N.Y.S.2d 732, lv. denied 77 N.Y.2d 801, 566 N.Y.S.2d 586, 567 N.E.2d 980, claimants argue that their property should be valued on its highest and best use as a sanitary landfill. We disagree. In our view, a number of circumstances distinguish this case from Esopus and mitigate in favor of Supreme Court's finding that the highest and best use of the subject property is as a septic landfill. Initially, even though petitioner may have acquired additional acreage for its sanitary landfill, the uncontroverted evidence of claiman...