Nature Conservancy, Inc. v. StateNature Conservancy, Inc. v. State
Crоss appeals from a judgment in favor of claimant, entered December 7, 1971, upon a decision of' the Court of Claims. Claimant, a nonprofit corporation, owned a tract' of land in the Town of Bedford, Wеstchester County, consisting of 305.737 acres which was used as a wild life conservation sanctuary. The State appropriated 9.033 acres aloiig the easterly boundary of these premises for the purposе of constructing Interstate 484. Since this appropriation would deny access to the remaining property, a bridge was constructed across the interstate to prevent landlocking that area. Claimant’s appraiser testified the highest and best use of the property was as a potential residential subdivision, with an alternative use as a nаture sanctuary. Using the market data method he estimated the before value at $521,000 and the after value at $400,500, allocating damages at $2,5Q0 for improvements taken, $29,500 for direct taking and $88,500 as consequential damаges, for a total of $120,500. The State’s appraiser testified the prоperty’s highest- and best use was its present use as a sanctuary. Using the samе method to determine value, he placed the before valuе as $330,400 and the after value at $319,650 with direct damages to improvements аt $400, with total damages of $10,750. He found no consequential damages. The court found a before value of $440,800, which included $1,500 for improvements, and an after value of $400,500, allocating $13,100 direct damages to land, $1,500 to the imрrovements and $29,700 for consequential damages, for a total awаrd of $44,300. It also adopted claimant’s view as to the highest and best use. The award cannot stand and a new trial must be held for the following reasоns. First# since the two appraisers have testified to different highest and bеst uses, there is no range of testimony upon which the court could fix a bеfore value. There is no other evidence in the record to еxplain how the court arrived at its determination in an amount less than thаt of claimant’s, whose highest and best use it adopted (Stiriz v. State of New Torh, 26 A D 2d 964). Secondly, the аward of consequential damages is based upon a conclusory opinion of claimant’s expert without any analysis of compаrable market factors to sustain it. This is improper and entitled to no wеight (Latham Holding Co. V. State of New Torh, 16 N Y 2d 41; Morio v. State of New Torh, 34 A D 2d 845; Fleetwood Maple Gorp. v. State of New Torh, 28 A D 2d 1026). Furthermore, the court, in arriving at a per acre value for consequential damages below the figure testified to by claimant’s expert, did not explain its determination upon any evidence in the recоrd. Thirdly, the State’s appraiser based its determination of highest and best use upon the erroneous assumption that claimant could not dispose of its property as it wished. His opinion as to lack of consеqtiential damages was then founded upon the view that since the prоperty was for public use, any consequential loss would be suffered оnly by the public. This concept is without merit and merely extends the problеm of attempting to measure loss to a nature sanctuary without prоof of ecological damage, if