Opinion
January 14, 1971
Appeal from the Court of Claims.
Present — Goldman, P.J., Marsh, Witmer, Moule and Henry, JJ.
Judgment unanimously reversed on the law and facts, without costs, and a new trial granted in accordance with the following Memorandum: The State appropriated a little over an acre of claimants' 9 3/4 acres of land on the east side of Oneida Street, near where Roberts Road intersects it, in the Town of New Hartford at Washington Mills, Oneida County. Most of the appropriated land lies along Oneida Street and is at street level, whereas the remainder of claimants' property is of considerably higher elevation and backs up to a residential subdivision. The property lies in an area zoned "Residential"; but many neighboring properties are devoted to commercial uses, apparently as pre-existing, nonconforming uses. At least two variances for commercial purposes, however, have been granted in this area. The principal issue litigated upon the trial was whether the subject property had a potential market value for commercial use despite its situation in a "Residential" zone. The evidence established that Oneida Street is State Route No. 8, a major access road to the nearby City of Utica; the subject property is convenient for ready access to and from said road; more than a dozen properties lying on either side of the subject property or across the road from it are used commercially, by virtue of pre-existing, nonconforming uses or the grant of zoning variances, and no application for a variance in this area has ever been denied. The remainder of claimants' property lies at higher elevation and serves as a buffer between the subject property and a residential subdivision on the east, so that there would have been little likelihood of opposition to a change of zoning of the subject property to commercial use; and the subject property is particularly adapted for commercial use in an area very likely to gravitate to exclusive commercial uses. The trial court held that there were good prospects that an application could have been made successfully to change the zoning of this property to permit its use for commercial purposes; that its highest and best use was potentially commercial, and that it should be given a value commensurate with such potential commercial use. We agree and affirm this finding of fact. We find, however, that the award is not supported by sufficient legally acceptable evidence of value. Claimants' appraiser properly used commercial properties for his comparables to support his appraisal of the subject property; but he did not make adjustments to show their relation to the subject property so that the trial court and this court could have factual data upon which to base a judgment of the value of the subject property (see Leising v. State of New York, 34 A.D.2d 1089; Geffen Motors v. State of New York, 33 A.D.2d 980, and Verni v. State of New York, 31 A.D.2d 727). The testimony of the State's appraiser is equally deficient in that he gave no consideration to the potential commercial value of the subject property; and all of his comparables were residential properties, which he admitted would be of no help to the court if the value of the subject property is to be considered in the light of its potential commercial use under a change of zoning. In addition, we find no support in the record for the reduced value, as fixed by the trial court, of 33 cents per square foot for the frontage property appropriated. Accordingly, the judgment should be reversed and a new trial ordered. Since we affirm the trial court's finding that the property should be valued commensurate with its potential use, subject to an appropriate application for change of zoning or for a variance therefor, the new trial should be limited to determination of the value of the property for its highest and best use, to wit, potential commercial purposes, subject to appropriate application therefor.