Thompson v. Erie County Indus. Development Agency

Decision Date10 June 1998
Docket NumberNo. 1,1
Citation674 N.Y.S.2d 193,251 A.D.2d 1026
Parties, 1998 N.Y. Slip Op. 5729 Stanley R. THOMPSON, Respondent, v. ERIE COUNTY INDUSTRIAL DEVELOPMENT AGENCY, Appellant. (Appeal)
CourtNew York Supreme Court — Appellate Division

Hiscock & Barclay, LLP by Mark McNamara, Buffalo, for Respondent-Appellant.

Magavern, Magavern & Grimm, LLP (Gary Maas, of counsel), Buffalo, for Claimant-Respondent.



In September 1990, claimant purchased approximately 15.76 acres on Seneca Creek Road in the Town of West Seneca. The front portion of the property was zoned residential and consisted of 1.57 acres with 253 feet of road frontage. On that portion is a single-family dwelling in poor condition, and a barn, wood shed and chicken coop. The rear portion of the property was zoned industrial and consisted of 14.19 acres.

On May 15, 1992, respondent acquired through condemnation approximately 450 acres of industrially zoned property, including the industrial portion of claimant's property, for the development of an industrial park. Respondent paid claimant $62,600. Claimant retained ownership of the residential portion.

Claimant filed a claim seeking additional compensation, and Supreme Court appointed a Referee to hear and report. The Referee determined that the value of the condemned portion of claimant's property is $100,000. The court denied respondent's motion to reject the Referee's report, confirmed the report and awarded claimant additional compensation of $37,400.

Initially, we reject the contention of respondent that claimant's appraisal reports were defective and should have been stricken. Although inadequate in some respects, the appraisals, taken as a whole, substantially satisfied the requirements of 22 NYCRR 202.61(c) (see, Matter of Welch Foods v. Town of Westfield, 222 A.D.2d 1053, 1054, 635 N.Y.S.2d 400; Matter of Broadway-Saranac Lake Corp. v. Board of Assessors, 43 A.D.2d 649, 349 N.Y.S.2d 830; see also, 22 NYCRR 202.59[g][2]; 202.60[g][3] ). Whatever insufficiencies there were in the appraisals did not hamper the Referee's ability to determine value (see, Matter of Welch Foods v. Town of Westfield, supra, at 1054, 635 N.Y.S.2d 400). It was not improper for claimant's appraisers to evaluate separately the residential and industrial portions of the subject property. Further, the failure to list a before-taking and after-taking valuation of the residential portion did not render the appraisals defective; as conceded by respondent, the taking had no adverse impact on the residential portion.

We also reject respondent's contention that the highest and best use of the remaining residential portion of the property is to subdivide it into four residential lots. "A party asserting a highest and best use different from the existing one must establish that it is reasonably probable that the asserted highest and best use could or would have been made of the subject property in the near future" (Matter of Rochester Urban Renewal Agency v. Lee, 83 A.D.2d 770, 443 N.Y.S.2d 479; see, Matter of City of New York [Broadway Cary Corp.], 34 N.Y.2d 535, 536, 354 N.Y.S.2d 100, 309 N.E.2d 870, rearg. denied 34 N.Y.2d 916, 359 N.Y.S.2d 1028, 316 N.E.2d 723). The use of the parcel for a residential subdivision is not reasonably probable. Subdividing the 254-foot-wide parcel into four lots 65 feet wide, the minimum width permitted under the zoning law, is not physically possible and, as conceded by respondent's appraiser on cross-examination, would result in a lot line running through the existing dwelling (see, County of Erie v. Mazol, 52 A.D.2d 1039, 384 N.Y.S.2d 295; cf., Zappavigna v. State of New York, 186 A.D.2d 557, 561, 588 N.Y.S.2d 585). The Referee, in determining the remaining value of the property, properly found that...

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2 cases
  • Stowell v. Safee
    • United States
    • New York Supreme Court — Appellate Division
    • 10 Junio 1998
  • Erie County Indus. Development Agency v. Fry
    • United States
    • New York Supreme Court — Appellate Division
    • 2 Octubre 1998
    ...same road; that property was one of the parcels partially acquired in the condemnation proceeding (see, Thompson v. Erie County Indus. Dev. Agency, --- A.D.2d ----, 674 N.Y.S.2d 193). The weight accorded by the Referee to claimants' appraisal was not an abuse of discretion (see, Matter of C......

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