At issue in this condemnation proceeding is the just compensation to be awarded to claimant, Malba Cove Properties, Inc. (Malba), for the taking of several parcels of property located in Queens County.^[FN1] The condemnee, the City of New York (the City), took title to the subject parcels on February 29, 1996 (the vesting date), for the creation of Powell's Cove Environmental Waterfront Park (the Park). The court viewed the property on April 27, 2006 and this non-jury trial took place on July 12, 14, 17 and 18, 2006.

The property consists of vacant waterfront land located along the north side of Eleventh Avenue, between 135th and 138th Streets. It is zoned R2-3, with a floor area ratio (FAR) of 0.5, or 0.6 with an attic allowance. The Park has been created since vesting. Both the City and claimant value the property as of the date of vesting and agree that its highest and best use would be for residential development.

In its Appraisal Report dated June 30, 2005, prepared by the Albert Valuation Group New York, Inc. (Albert), claimant values the property at $10,000,000. In so finding, Albert determines that the total lot area of the subject property is 877,304 square feet; the majority of it is underwater, with additional property located within paper streets, i.e., streets that are mapped but are not physically improved. Claimant describes the property as being relatively level and located in Malba, "a prime area" that is "an upscale community that includes several waterfront mansions," consisting of predominantly residential uses, including one- and two-family homes and several complexes of attached row houses. Albert further notes that approximately 88% of the land in the area is [*2]improved with residential structures, of which 75% are one- and two-family homes, 8% are walk-up apartment buildings and 5% are condominiums and elevator buildings.

In reaching its valuation, Albert adopts the findings of Ronald Ogur, P.E., claimant's zoning expert, who relies upon the opinion of Paul F. Bonfilio, P.C., a licensed architect, who concludes that the paper streets could be demapped. Albert's first two scenarios for development propose the as-of-right construction of multli-family residential units consisting of between 81 and 90 dwelling units that are 2.6 stories high, with the first level being a garage. If the paper streets are not demapped, claimant contends that 31,899 square feet of floor area could be built on Block 3989 and 59,690 square feet on Block 3994, for a total of 91,589 square feet. Albert concludes that the value of such development would be $9,200,000. If the streets are demapped, 37,614 square feet of floor area could be built on Block 3989 and 67,288 on Block 3994, for a total of 104,902 square feet. Albert concludes that the value of such development would be $10,435,000.

Albert also values the property based upon the proposed subdivision of the site into eight individual building lots for detached, single-family residential units with buildable areas ranging from 8,623 to 11,662 square feet, with demapping of the streets. Albert then assumes that a maximum of 10,000 square feet per unit would be reasonable, for a total of 77,066 square feet, based on the assumption that one would not build larger structures, though some of the parcels could support larger homes. Albert concludes that the value of such development would be $9,875,000.

Albert premises its valuation upon the consideration of 13 comparable sales analyzed by Daniel F. Sciannameo, MAI. In valuing the property as developed with multi-family development, Albert considered sales that occurred between May 23, 1994 and August 14, 1996, taken from the neighborhood as far west as College Point and as far east as Douglaston, with the size of the lot ranging from 5,000 to 34,290 square feet and buildable area ranging from 3,750 to 25,718 square feet. Sciannameo chose these comparable sales because he is of the opinion that location is more crucial a criteria than is size. Two of the parcels consisted of vacant land; eleven were improved, which improvements were subsequently demolished for new construction.

In addressing multi-family development, the sales price per FAR for these sales range from $21.33 to $103.08, before adjustment. After adjusting for site preparation (-5%), water access (5%, 10% or 90%), riparian rights (15%), excess parking (5%), and $10 per square foot for the estimated cost of demolition of the existing structures, the adjusted sales price per square foot of FAR ranges from $51.61 to $165.85, with a mean of $101.28 and a median of $91.25. Sciannameo explains that he did not adjust the sales for size because he "could readily ascertain no trend as to size by the comparable sales." Albert accordingly values the property at $100 per square foot of FAR. Hence, if the streets are not demapped, Albert values the property at $9,200,000 ($100 x 91,589 square feet). If the streets are demapped, Albert values the property at $10,500,00 ($100 x 104,902 square feet); reducing this value by 5% of the increase in value with demapping [*3]as an estimation of the cost to demap, the value would be $10,435,000.

In valuing the property as developed by eight single-family homes, with street demapping, Albert relies upon five of the 13 comparable sales, which occurred between December 15, 1994 and May 20, 1996. These sales have land areas ranging from 8,939 to 24,267 square feet and builable areas ranging from 4,470 to 12,134 square feet, with the price per FAR ranging from $50.71 to $140.19, before adjustment. The adjusted sales price per square foot of FAR ranges from $116.26 to $148.34 per square foot, with a mean of $130.05 and a median of $133.37, after adjusting for time, location, water access and riparian rights. Albert accordingly values the property at $130 per square foot of FAR, or $10,000,000 ($130 x 77,066 square feet). After applying a 5% discount for the cost of demapping, again based upon the increase in value if the streets are demapped, the value of the property as so developed would be $9,875,000. In reconciling these values, Albert concludes that the site should be valued at $10,000,000.

In its Appraisal Report dated May 13, 2005, prepared by Jerome Haims Realty, Inc. (Haims), the City values the property at $890,000. In reaching this conclusion, Haims relies upon the Development Potential Analysis prepared by Fleming-Lee Shue, Inc., Environmental Management and Consulting (Fleming). The City describes the property as being located in College Point, which is wholly contained within Queens Community District 7. In describing the District, Haims notes that 67.2% of the land is improved with one- and two-family homes, 16.9% with condominiums, 6.6% with walkups and .7% with elevator buildings.

According to Fleming's analysis, the total lot area of the subject property is 960,494 square feet or 22.05 acres; the upland portion of the property allegedly comprises a total of 116,862 square feet or 2.68 acres, approximately 12.15% of the entire site. Fleming opines that given the height limitation of 21 feet and the restrictions placed on a flood plain, a third floor could not be built, and as a result of the waterfront zoning, development at the site is limited to single- or two-family detached or semi-detached residential or row houses.

The analysis hence concludes that the total potential developable area is 36,018 square feet, with 9,292 square feet on Block 3989 and 26,726 square feet on Block 3994.^[FN2] The City acknowledges that 66,226 square feet could be built, but declines to so value the property, asserting that it would be difficult to sell houses with an average size of 8,278 square feet and that houses of this size were not consistent with the area.

Due to the dearth of recent sales of vacant land or wetlands and in the neighboring area, the City's search for comparable sales looked to various other areas in Queens. [*4]Haims accordingly considered three comparable sales in Far Rockaway, one in Flushing and one in Bayside, which occurred between September 14, 1994 and December 12, 1995, having lot sizes ranging from 34,000 to 90,000 square feet and buildable areas ranging from 19,824 to 100,667 square feet. Haims asserts that the sales price per square foot of developable area ranges from $8.15 to $40.36 per square feet. After adjusting the property for location, size and waterfront access, the adjusted sales price per square foot of developable property ranges from $16.86 to $51.67 per square foot, with an average price of $34.10 and a median of $29.44. Haims accordingly values the property at $38 per square foot, weighing the sales in Bayside and Flushing more heavily because they were the most comparable in terms of location, for a total market value of $1,368,684 ($38 x 36,018 square feet). He then deducts the cost of the approval process to demap the streets at $200,000 and the site development costs of $280,260, as estimated by Fleming, for a final value of $890,000.

In its rebuttal report, claimant asserts that the cumulative effect of the errors and flaws in the City's valuation is to understate the development potential of the property, both in terms of potential use and in the square feet of buildable area, which results in a substantial understatement of the property's value. More specifically, claimant asserts that the City incorrectly excludes multi-family uses permitted in an R3-2 zoning area; neglects to calculate the correct size of the zoning lot by not basing the calculation upon that "portion of a waterfront lot located landward of the bulkhead line" as provided in Zoning Resolution § 62-11; fails to acknowledge that the permissible building height allowed for the construction of a third floor in each unit is miscalculated by measuring the permissible height from the street grade, rather than the higher base flood elevation, and limits the building height to 21 feet, instead of a maximum ridge height of 35 feet; fails to acknowledge that the front yard set back of 18 feet applies only to a garage entrance at ground level; miscalculates the point from which the 30 foot waterfront yard is measured by measuring it from the rip rap wall, instead of from the mean high water line; overestimates the cost and time required to demap the paper streets at $200,000 to $300,000 instead of $30,000 to $50,000; incorrectly assumes that visual corridors would be required and/or overstates the necessary width of the corridors; considers comparable sales from inferior areas; and improperly adjusts the sales prices.

In his rebuttal report, Ogur also revises his site plans to include five single-family homes on each block, for a total of 75,979 square feet.^[FN3] In so configuring the proposed development, Ogur contends that no visual corridors are required for single-family units pursuant to Zoning Resolution § 62-42, because the 30 feet within the bed of the street [*5]would comprise more than 50% of the width of the zoning lot.

In its rebuttal report, the City finds claimant's Appraisal Report to be flawed in that Ogur's site plan fails to properly apply that provision of the Zoning Resolutions that requires a 30 foot waterfront yard, since he measured the yard from the mean high water line, and not from the rip rap wall referred to in the stipulation of settlement (the Stipulation) entered into the earlier related proceedings caption Malba Cove Realty Corporation v Jorling (Sup Ct, Queens County, Index Nos. 7781/88 and 9545/88), wherein Malba disputed the tidal wetlands adjacent area jurisdiction asserted by the New York State Department of Environmental Conservation (DEC) with regard to the subject property (the DEC Proceeding); that Ogur improperly determined that the required visual corridors were 50 feet, and not the 60 foot width of the upland streets of which they are a prolongation; that it is not necessary to value both single-family and multi-family units, with and without street demapping, as the inclusion of multiple development scenarios only confuses the issues and weakens the conclusion that demapping could be accomplished; and that claimant's adjustments are not reasonable. The City further contends that Sciannameo used too many comparable sales; 11 of his comparable sales are inappropriate in terms of size and potential development, without appropriate adjustment; that his adjustments of 90% for water access and 15% for riparian rights are excessive; that he fails to properly consider the cost of demapping and site preparation; and that his sales were not based on a per lot analysis.

After consideration of Fleming's report and claimant's appraisal, however, the City increased its valuation of the property to $2,900,000, assuming that multi-family housing could be constructed, that street demapping could be approved and that the property has a potential development of 76,102 square feet, which provides claimant with the benefit of achieving the largest possible development. After increasing the adjustments for size, the price per FAR ranges from $17.27 to $55.70, with an average of $35.48 and a median of $29.96. Haims accordingly values the property $45 per square foot, reduced by site costs of $280,260 and demapping costs of $250,000. The City further opines that no new value analysis is required for single-family units, since five of the eight units proposed by claimant would be in excess of 10,000 square feet, which it believes is not financially feasible and would be difficult to sell.

Hence, the trial focused on the issues raised in the party's respective appraisal reports.

It is well settled that " [t]he constitutional requirement of just compensation requires that the property owner be indemnified so that he may be put in the same relative position, insofar as this is possible, as if the taking had not occurred'" (Wilmot v State, 32 NY2d, 164, 168 [1973], rearg denied 33 NY2d 657 [1973], citing City of Buffalo v Clement Co., 28 NY2d 241, 258 [1971]). The measure of damages is fixed as of the date of the taking (Saratoga Water Servs. v Saratoga County Water Auth., 83 NY2d 205 [*6][1994], petition dismissed 247 AD2d 788 [1999]; City of Newburgh v Kirchner, 234 AD2d 364 [1996]; Gold-Mark 35 Assocs. v State, 210 AD2d 377 [1994]).

It is equally well established that the measure of just compensation is the fair market value of the property taken (Matter of Town of Islip [Mascioli], 49 NY2d 354 [1980]; Rochester Urban Renewal Ag. v Willsea Works, 48 NY2d 694 [1979]; Breitenstein v State, 245 AD2d 837 [1997]), which is essentially is a question of fact (see e.g. W. T. Grant Co. v Srogi, 52 NY2d 496 [1981]). Generally, the " market value of real property is the amount which one desiring but not compelled to purchase will pay under ordinary conditions to a seller who desires but is not compelled to sell'" (id. at 510, quoting Heiman v Bishop, 272 NY 83, 86 [1936], reh denied 273 NY 497 [1937]; accord Matter of Town of Islip, 49 NY2d 354; City of Newburgh, 234 AD2d at 365; Matter of Meditrust v Fahey, 226 AD2d 999 [1996]; Gold-Mark 35 Assocs., 210 AD2d 377; Long Is. Light. Co. v Assessor for Town of Brookhaven, 202 AD2d 32, 36 [1994], lv denied 85 NY2d 809 [1995]). "In the determination of what is just compensation, there is no single element which is controlling, and it is proper to consider all factors indicative of the value of the property. The court must consider those things which will be present in the minds of a willing buyer and a willing seller" (Application of City of New York, 69 AD2d 111, 114 [1979], affd 59 NY2d 57 [1983], citing 19 NY Jur, Eminent Domain, § 140, p 353).

It is also significant to note that in making an award of just compensation, an "appraisal should be based on the highest and best use of the property even though the owner may not have been utilizing the property to its fullest potential when it was taken by the public authority" (Matter of Town of Islip, 49 NY2d at 360, citing Matter of County of Suffolk [Firester], 37 NY2d 649, 652 [1975]; accord Keator v State of New York, 23 NY2d 337, 339 [1968]; Chemical v Town of E. Hampton, 298 AD2d 419, 420 [2002]; 627 Smith St. v Bureau of Waste Disposal, 289 AD2d 472, 473 [2001], appeal dismissed 98 NY2d 646 [2002], lv denied 98 NY2d 611 [2002]). Hence, it has been held that property taken in condemnation must be valued as legally restricted in use by all zoning and environmental regulations in effect on the date of taking, with the reasonable probability of rezoning being a relevant factor in determining the market value (see Matter of Town of Islip [Mascioli], 49 NY2d 354; Matter of Suffolk County, 109 AD2d 155 [1985], citing Chase Manhattan Bank v State of New York, 103 AD2d 211 [1984]; accord Basile v Town of Southampton, 89 NY2d 974 [1997], cert denied 522 US 907 [1997]). "A use which is no more than a speculative or hypothetical arrangement in the mind of the claimant may not be accepted as the basis for an award" (Matter of City of New York [Shorefront High School-Rudnick], 25 NY2d 146, 149 [1969]), 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)" (Matter of County of Clinton, 204 AD2d 898, 899 [1994]).

The use of comparable sales is an approved evaluation method for real property (see Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535 [1974], reh denied 34 NY2d 916 [1974]; Freiberger v State, 33 AD2d 619 [1969], citing Village of [*7]Lawrence v Greenwood, 300 NY 231, 237 [1949]).

"With respect to the comparable sales method, market value may be determined with evidence of recent sales of comparable properties' (Matter of General Elec. Co. v Town of Salina, 69 NY2d 730, 731). . . . By its very definition, a comparable sale need not be identical to the subject property. A comparable sale need only be sufficiently similar to serve as a guide to the market value of the [subject] complex, notwithstanding differences between these comparables and the [subject] property' (Matter of General Elec. Co. v Town of Salina, 69 NY2d, at 732, supra; Matter of Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d, at 247). In fact, and in accordance with the substantial evidence standard, sound theory and objective data' may be used to adjust evidence of sales of comparable properties in order to more accurately reflect the market value of the subject property. Even evidence of past sales may need adjustment in light of any changes which may have taken place in the market for the property."

(FMC v Unmack, 92 NY2d 179, 189 [1998]).

"[T]he evaluation of the suitability of allegedly comparable' sales is a matter within the sound discretion of the trial court" (In re Acquisition of Real Prop. by the Village of Johnson City, 241 AD2d 874, 876 [1997], appeal denied 91 NY2d 802 [1997], citing Levin v State of New York, 13 NY2d 87, 92 [1963]; Chase Manhattan Bank, 103 AD2d at 222). "Differences between the subject property and alleged comparables are the proper subject of adjustment by expert witnesses, and the degree of comparability becomes a question of fact" (Martin v State, 33 AD2d 599, 600 [1969], citing Kastelic v State of New York, 29 AD2d 803 [1968]). The failure of an expert to give a dollar and cents adjustment in any instance between the comparable and the subject land or the failure to give a breakdown or to state the factors which entered into the valuation affords no basis for review, and it is insufficient to justify an award (see e.g. Geffen Motors v State, 33 AD2d 980 [1970]). Thus, "[t]he suitability of comparable sales, absent legal error, is a matter for resolution by the trial court" (Matter of City of New York, 98 AD2d 166, 190 -191 [1983], citing Yonkers Rlty. Assoc. v State of New York, 52 AD2d 1014, 1015 [1976]; Sapia v State of New York, 33 AD2d 821 [1969]; Argersinger v State of New York, 32 AD2d 708, 709 [1969]). It must also be recognized that in evaluating comparable sales, " the trial court enjoys broad discretion in that it can reject expert testimony and arrive at a determination of value that is either within the range of expert testimony or supported by other evidence and adequately explained by the court'" (BTC Mortg. Investors Trust 1997-SI v Altamont Farms, 284 AD2d 849, 850 [2001], quoting ARC Machining & Plating v Dimmick, 238 AD2d 849, 850 [1997]; In re CNG Transmission, 273 AD2d 726, 728 [2000]).

Further, the cost of construction plans or site preparation may be considered in determining the market value of a condemned parcel (see e.g. In re CNG Transmission, 273 AD2d at 727, citing Matter of Rochester Urban Renewal Agency v Taddeo, 55 AD2d 1042 [1977], lv denied 41 NY2d 804 [1977]; Specialty Foods v State of New York, 46 [*8]AD2d 989 [1974], lv dismissed 37 NY2d 751 [1975], lv dismissed 37 NY2d 706 [1975]; Rustcon Developers v State of New York, 33 AD2d 582 [1969]; accord Matter of County of Clinton, 204 AD2d 898). Hence, "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" (Matter of Clinton, 204 AD2d at 899, citing Village of Massena v 50,500 Square Feet of Land, 9 AD2d 980 [1959]; Metzner v State of New York, 59 Misc 2d 603 [1968], affd 43 AD2d 774 [1973]).

Finally, the burden of proof with regard to the amount of just compensation to which it is entitled rests upon claimant:

"It seems obvious that where, as here, the landowners have rejected the offer and allege a greater sum than that deemed fair by the condemnor, the landowners have created the issue. Having created the issue as to value and damages in excess of that offered, they must then, in effect, assume the burden of proof. As Judge Van Voorhis wrote in Heyert v Orange & Rockland Utilities (17 N Y 2d 352, 364): Sackman's Nichols on Eminent Domain (3d ed., Vol. 5, § 18.5) says that the burden of proof of establishing the right to substantial compensation is upon the owner citing Matter of Mayor of City of NY (Walton Ave.) (131 App Div 696, affd 197 NY 518), concerning which there can be no question'. (Emphasis added.)"

(Penn Yan Urban Renewal Agency v Penn Yan Realty, 57 Misc 2d 1033, 1035 [1968]).

During the course of the trial, the City objected to the testimony of claimant's experts, arguing that Bonfilio was not qualified to testify with regard to whether the streets could be demapped and that Sciannameo was not qualified to testify with regard to demolition and site preparation costs. Claimant objected to Fleming's testimony with regard to the kind of development that would provide the highest and best use in the area. Claimant also moves "strike all of [Haims'] testimony to those matters not contained in his report."

The Law

As is relevant herein, it has been held that:

"An expert is qualified to proffer an opinion if he or she is possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable' (Matott v Ward, 48 NY2d 455, 459 [1979]). The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject (see Price v New York City Hous. Auth., 92 NY2d 553, 559 [1998])."

(Miele v American Tobacco Co., 2 AD3d 799, 802 [2003]). The issue of the admissibility of expert testimony on a particular issue is addressed primarily to the sound discretion of [*9]the trial court (see e.g. Berger v Tarry Fuel Oil Co., 32 AD3d 409 [2006]).

Discussion

Bonfilio holds a master's degree in architecture. He was employed by the Federal Department of Housing and Urban Development, reviewing grants of federal funds; by the New York City Department of Planning for 17 years, as an urban designer, with duties including preparing Uniform Land Use Review Procedure (ULURP) proposals to be presented to the commissioners, determining whether zoning requirements were met, and analyzing demapping applications; by the Bureau of Building Design, designing buildings; as the Land Use Director for Staten Island; by the Board of Standards and Appeals, as a commissioner; and in private practice. Sciannameo has been employed as a real estate consultant and appraiser for 20 years. He testified that in appraising approximately 300 parcels of vacant land over the years, the cost of demolition must be established in order to value the property. Fleming has a bachelors degree in civil engineering and a masters degree in sanitary engineering. He is licensed in New York, Connecticut and New Jersey and has been employed as an engineer since 1968. As the president of Fleming, he is responsible for all of the technical analyses performed by the firm in the areas of zoning, development assistance, environmental review and hazardous waste remediation. During the course of his career, he established the development potential for vacant building sites approximately 25 to 30 times; applied zoning resolutions and conducted zoning analyses for environmental reviews; was involved in approximately 15 to 20 street demapping applications; prepared applications to obtain permits from the DEC to develop wetlands; and prepared environmental assessment statements and environmental impact statement.

Based upon the above discussed educational background and the extensive experience that each witness possesses in his field, the court finds that each is qualified to testify as an expert herein. Accordingly, the parties' respective objections to the witnesses' qualifications on the subject of inquiry do not preclude the admission of the testimony, but rather affect the weight to be accorded to it (see generally Kwasny v Feinberg, 157 AD2d 396 [1990]). The court also declines to strike any portion of Haims' testimony, since claimant did not particularize its objection, either during the trial or in its post-trial submissions, and the court declines to attempt to identify the portions of the testimony that claimant finds objectionable.

While the parties agree that the highest and best use of the property would be for residential development, claimant contends that the property could be developed with either single-family or multi-family units, since such development is permissible in accordance with applicable zoning regulations and is feasible. In its rebuttal report, the City also values the property as improved with multi-family units, but continues to assert that the property should be developed with smaller single-family homes than proposed by claimant. This conclusion is based upon Fleming's testimony that he observed only [*10]single-family development in the immediate area.

Discussion

In view of the opinions of both Albert and Haims, as set forth in the Appraisal and Rebuttal Reports, and as expanded upon by all of the witnesses at trial, the court concludes that the property could be developed with either single-family or multi-family units. In this regard, the City's assertions that a developer would elect to build only single-family units and that large single-family homes would be difficult to sell is purely speculative and lacking in evidentiary support. Further, in his report, Haims notes that in the community district in which the property is located, 16.9% of the land is used for condominiums, 6.6% are walkups and .7% are elevator buildings, which belies the City's contention that multi-family developments would not be financially feasible in the area.

Implicit in this holding is the finding that claimant adequately sustained its burden of proving that multi-family units could be built on the property (see generally City of Yonkers v Celwyn Co., 221 AD2d 437, 438 [1995], appeal denied 87 NY2d 812 [1996] [the award was properly based upon the reasonable probability of obtaining necessary approvals or variances]). Similarly, claimant's contention that the property could be developed as multi-family housing units is "not merely "a speculative or hypothetical arrangement in the mind of the claimant"'" (In re City of Syracuse Indus. Dev. Agency, 20 AD3d 168, 170-171 [2005], quoting Matter of City of New York v Jamaica Arms Hotel, 14 AD3d 699, 700 [2005], quoting Matter of HBP Assoc. v County of Orange, 277 AD2d 237, 237 [2000]; cf. Andrew v State, 137 AD2d 952, 953 [1988] [the court did not err in refusing to find that the best and highest use of the parcel was as a residential subdivision where the planning board unanimously rejected the proposal to so develop the property because of drainage problems which existed on the land, claimant called no witnesses to establish the likelihood that it could have been developed as a subdivision and the State produced a number of witnesses and technical reports which detailed the drainage problems in support of its contention that the land was unsuitable for development as a multiple-lot subdivision]). In this regard, it is significant to note that prior to the commencement of this eminent domain proceeding, claimant had contacted DEC, commenced litigation and obtained a determination of DEC's wetlands jurisdiction, which actions indicate that it was already seeking the approvals necessary to improve the property.

In its Appraisal Report, claimant contends that three-story structures could be built on the property. Ogur calculates the area of the third floor at approximately 60% from the grade plain. Although the City contends that only two stories could be built in its Appraisal Report, it concedes in its Rebuttal Report that three-story units could be constructed, with Fleming asserting that the area of the attic would be 40% to 50% of the area of the lower floors, based upon his observation of other homes in the area.

In its post-trial memorandum of law, claimant argues that the area of the third floor [*11]of the proposed structures should be calculated at 81.6% of the area of the floors below, if calculated from the base plain, instead of the 60% estimate utilized in its Appraisal and Rebuttal Report. In so arguing, claimant contends that although a pre-trail motion to correct this error was denied by this court, inasmuch as the City argued at trial that the area of the third floors should be limited to 40 to 50% of the floors below, the issue is again before the court and its proof of the greater area should control in valuing the property.

Discussion

Since three-story units would provide more buildable area, the property shall be valued as if it were so developed. The court further determines that the area of the third floor shall be calculated at 60% of the floors beneath, finding that claimant's mathematical calculation, which was not refuted by the City, is more persuasive than Fleming's estimate, as based upon his observation of other homes.

In so holding, the court rejects claimant's contention that it should be permitted to increase the area of the third floor to 81.6% of the floor below. Pursuant to the doctrine of law of the case, once a point is decided within a case, that point is binding upon all parties and upon all courts of coordinate jurisdiction (Gee Tai Chong Realty v GA Ins. Co., 283 AD2d 295, 296 [2001], citing Siegel, NY Prac, § 488, at 680 [2nd ed]). Thus, where a party had a full and fair opportunity to litigate the propriety of a determination, and the issue was resolved on the merits in a prior decision and order, the prior decision constitutes law of the case (see Posin v Russo, 294 AD2d 344 [2002]; Grullon v City of New York, 297 AD2d 261, 265 [2002] [a prior judicial determination in an action is binding as law of the case on a court of coordinate jurisdiction with the court that rendered the prior determination]; Thomas v Dietrick, 284 AD2d 325 [2001] [the doctrine of the law of the case applies to various stages of the same litigation as an articulation of sound policy that when an issue is once judicially determined, that should be the end of the matter as far as judges and courts of co-ordinate jurisdiction are concerned]). From this it follows that the June 30, 2006 decision of this court, which denied claimant the right to amend its appraisal reports to increase the floor area of the attic to 81.6%, constitutes law of the case and is binding herein.

In reliance upon the report and testimony of Bonfilio, claimant contends that the streets could be demapped. In so concluding, Bonfilio is of the opinion that if an application to demap was filed with the New York City Planning Department, an environmental impact statement would not be required, since a negative declaration would be issued, i.e., a finding that the proposed demapping would have no environmental impact. This opinion is based upon Bonfilio's understanding that a negative declaration had been issued for the demapping of the paper streets on March 10, 1992, during the process of creating the Park. Bonfilio further testified that the same factors would be considered in making the determination of whether a street would be [*12]demapped, whether for the creation of a park or for construction of residential housing, including, for example, whether the streets were underwater and whether they were required for street purposes or for access to the property by the fire department.

Although the City does not consider the possibility of demapping the streets in its Appraisal Report, it concedes that demapping is possible in its Rebuttable Report. Fleming testified, however, that the City would not approve demapping as shown in claimant's site plan, because the plan includes houses that would destroy the existing visual corridor. The remainder of its arguments address the issues of the cost of the demapping process and the width of the requisite visual corridors.

Discussion

The court finds claimant's contention that the paper streets could be demapped to be persuasive. In this regard, claimant's assertion that the demapped streets would not be necessary for the proposed development is rationally based, since there is no evidence offered to support the conclusion that the demapping of the streets, which lead only into the water, would not be permitted, particularly since the development plans offered by claimant appear to provide sufficient access to the proposed units for ingress, egress and emergency access. Significantly, the City offers no evidence to support its claim to the contrary.

In so holding, the court rules that the negative declaration issued with regard to demapping the street for the creation of the Park is admissible. In the first instance, a certified copy was annexed to claimant's post-trial memorandum of law, rendering moot the City's objection on the ground that the document was not certified. In the alternative, the negative declaration is admissible pursuant to CPLR 4522 as a record affecting real property, since it was presumably on file with a department of the City for more than ten years.^[FN4]

In addition, although the negative declaration is not conclusive proof that demapping would be approved if the property were developed with housing units, it is clearly relevant to the issue (see generally Pourooshasb v Pourooshasb, 4 AD3d 404, 405 [2004], citing Price, 92 NY2d at 560; Radosh v Shipstad, 20 NY2d 504, 508 [1967] [determinations as to the relevancy of evidence are generally left to the sound discretion of the trial court]). Further, since claimant's Appraisal and Rebuttal Reports make reference to street demapping, introduction of the negative declaration should have been [*13]contemplated by the City. In this regard, it is self evident that since the application was filed by the City when the Park was created, the City was fully aware of the existence of the negative declaration, and hence cannot claim prejudice or surprise by its introduction into evidence.

Accordingly, since both parties agree that demapping is possible and that the buildable area would be increased if the streets were demapped, which would consequently increase the value of the property, the remainder of this decision shall address only the development scenarios that assume demapping.

There is no dispute that under the New York City Zoning Resolutions, the property consists of "waterfront blocks," and hence requires a waterfront yard that is 30 feet deep, and that visual corridors are required. Claimant contends, however, in reliance upon the reports and testimony of Ogur, that applying the zoning resolutions, the rear setback for any development on the subject property would be 30 feet from the mean high water line, which is the shoreline. Accordingly, the proposed development is in compliance with the controlling zoning requirements, since the buildings are 60 to 70 feet from the mean high water line.

As is also relevant to the instant dispute, Ogur defines a rip rap wall as "a collection of laid stones, boulders, concrete. It's generally laid on a very soft bed and it's randomly laid, and it serves a function to stabilize the shoreline." He further testified that he did not observe a rip rap wall on the property when he first saw it three years ago, nor did he observe a rip rap wall on the Acquisition Map filed herein, a topographic map dated June 1994 and a grading map dated February 25, 1999 from the Parks Department, or the Montrose survey, dated July 30, 1986 (the Montrose Survey). Further, Ogur testified that the shoreline was the mean high water line and that there was no man-made structure of a sufficient nature to stabilize the shoreline so as to be characterized as a rip rap wall, since a stabilized shoreline located 60 to 70 feet from the mean high water line would serve no purpose. Hence, the existence or non-existence of a rip rap wall is irrelevant to the placement of the structures on his site plans. Sciannameo also testified that he did not see a rip rap wall on the subject property when he inspected it in the fall of 2004.

Ogur further testified that a visual corridor, or an open lane that is there for people upland to be able to look out and see the water, is required for a multiple dwelling, i.e., a building with three or more apartments, but is not required for one- and two-family homes. With regard to the requisite visual corridors for multi-family development, claimant contends that the width of the required corridors would be the width of the streets that they extend, or 50 feet.

In contrast, the City contends, in reliance upon Fleming's testimony, that his inspection of the subject property on June 28, 2002 revealed the existence of a rip rap wall, as is indicated by a photograph included in his report. Fleming defines a rip rap [*14]wall as:

"stones or in many cases in New York City broken concrete that is placed along an [earthen] shoreline, that is subject to being . . . touched by water to prevent the water from eroding the soil away and depositing it in the waterway. It ranges from simple placement of stones on the edge to engineered structures that are designed to resist waives from hurricanes."

Fleming also testified that the rip rap wall on the property was "a stabilized natural shore" as used by City Planning, because it was located at the landward edge of halophytic vegetation that needed routine inundation by tidal seawater in order to survive.

In addition, the City contends, in reliance upon Fleming's testimony, that the visual corridors would have to be five feet wider than proposed by claimant, because the width must be 60 feet, the width of the upland streets.

The City accordingly argues that upon examination of claimant's proposed development of multi-family units with street demapping, a wider building is permitted on both blocks, since side yard setbacks are not required. For Block 3989, providing the necessary 30 foot waterfront yard measured from the rip rap wall would reduce the footprint of the building by 5,900 square feet. In addition, providing a 60 foot visual corridor, instead of the 50 foot proposed by Ogur, would remove approximately 200 square feet from the footprint, which would reduce the total square feet by 18,300 (5,900 x 3 = 17,700; 200 x 3 = 600; 17,700 + 600 = 18,300), for a total buildable area of 19,314 square feet, instead of the 37,614 proposed by Ogur. For Block 3994, the requisite waterfront yard would reduce the building foot print by approximately 3,430 square feet per floor, or a total of 10,290 square feet. Increasing the visual corridor to 60 feet would reduce the footprint an additional 74 square feet, thereby reducing the total square feet of buildable area by 10,500 square feet,^[FN5] resulting in a total buildable area of 56,788 square feet, instead of the 67,288 proposed by Ogur. Hence, the total square feet that could be built on both blocks, with demapping, would be 76,102 square feet (19,314 + 56,788), instead of the 104,902 proposed by Ogur (37,614 + 67,288).

In single family development, the City contends that providing the requisite waterfront yard from the rip rap wall would reduce three of the homes proposed on Block 3989 to 37 feet in depth. In addition, because of the elevation of the flood plain, no basement could be built and an attic would provide, at most, 50% of floor area of the lower floors. Thus, the maximum floor area that could be built would be 23,270 square feet, i.e., three houses at 4,580 and one at 9,530 square feet. On Block 3994, Fleming agrees that the 42,956 square feet proposed by Ogur could be constructed. Hence, a total of 66,226 square feet (23,270 + 42,956) could be built on both blocks.

[*15]Applicable Zoning/DEC Requirements

New York City Zoning Resolution § 62-11 defines shoreline as "the mean high water line, as determined in accordance with the procedure set forth by the National Oceanic and Atmospheric Administration of the U.S. Department of Commerce." Pursuant to Special Regulation § 62-342:

"Rear yard regulations shall be inapplicable on waterfront zoning lots. In lieu thereof, a waterfront yard shall be provided along the entire length of the shoreline, bulkhead or stabilized natural shore, whichever is furthest landward, with a depth [of 30 feet]. The minimum depth shall be measured from the landward edge of the bulkhead, landward edge of stabilized natural shore or, in the case of natural shorelines, the mean high water line."

(emphasis omitted). The accompanying diagram illustrating the application of § 62-342 indicates that the depth of a waterfront yard should be measured from the "landward Edge of Bulkhead, Rip-Rap, Revetment or other Shore Stabilization."

Zoning Resolution § 62-11 defines a visual corridor as "a public street or tract of land within a block that provides a direct and unobstructed view to the water from a vantage point within a public street, public park or other public place." Zoning Resolution § 62-422 states that "the width of a visual corridor shall be determined by the width of the street of which it is a prolongation but in no event less than 50 feet" (emphasis omitted).

These zoning regulations must be interpreted in conjunction with the DEC regulations that define the limits of DEC jurisdiction, although that issue in regard to the subject property has been resolved by the Stipulation.^[FN6] [*16]

In the DEC Proceeding, claimant denied that DEC had jurisdiction over the property at issue herein or, in the alternative, argued that DEC's jurisdiction should be limited by an alleged rip rap wall (6 NYCRR 661.4 [b] [ii]), or by an alleged ten-foot contour line (6 NYCRR 661.4 [b] [ii]). As is relevant herein, the Stipulation settling that action provides that:

"With regard to Queens Tax Block 3994, Lot 1, New York State Department of Environmental Conservation ( DEC') tidal wetlands adjacent area jurisdiction shall extend 30 feet landward from a broken line identified as top of rip-rap' on a topographical survey map dated 7-30-86,' drawn by Montrose Surveying Co., Inc., sheet 1 of 3 (copy annexed hereto as Exhibit 1).

"With regard to Queens Tax Block 3989, Lot 1, DEC's tidal wetlands adjacent area jurisdiction pursuant to ECL article 25 shall extend landward from Powell's Cove to a broken line identified as top of rip-rap' on a topographical survey map dated 7-30-86,' drawn by Montrose Surveying Co., Inc., sheet 3 of 3 (copy annexed hereto as Exhibit 2)."

Copies of portions of the Montrose Survey illustrating the location of said rip rap wall were attached to the Stipulation as exhibits.

Discussion

In asserting that the waterfront yard should be measured from the mean high water line, claimant relies upon the language of Special Zoning Regulation § 62-342. In arguing that the waterfront yard should be measured from the rip rap wall that allegedly exists on the property, the City argues that the rip rap wall constitutes a stabilized natural shoreline pursuant to Special Zoning Regulation § 62-342 and it relies upon the Stipulation to establish the existence and location of the rip rap wall. Although the Zoning Regulations indicate that the depth of a waterfront yard should be measured from the top of a rip-rap, the City fails to prove the existence and/or location of a rip rap wall as of the date of vesting of title.

As a threshold issue, the court first notes that the observations of the parties' experts, who first viewed the property years after title vested in the City and after the Park [*17]was created, is lacking in probative value. Significantly, the earliest inspection of the property was conducted by Haims on March 10, 1997, over one year after the City took title.

Further, the City offers no legal theory to support its assertion that the terms of the Stipulation are controlling herein in establishing the existence and location of the rip rap wall as of the date of vesting. In so arguing, it must be presumed that the City is contending that claimant should be collaterally estopped from now denying the existence of said wall. "Collateral estoppel, also known as issue preclusion, prevents a party from relitigating an issue already decided against him or her" (In re George T., 99 NY2d 307, 314 [2002]; see also Liddle, Robinson & Shoemaker v Shoemaker, 309 AD2d 688, 691[2003]). "The equitable doctrine of collateral estoppel is intended to reduce litigation and conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to relitigate an issue that has already been decided against it'" (Juan C. v Cortines, 89 NY2d 659, 667 [1997], quoting Kaufman v Lilly & Co., 65 NY2d 449, 455 [1985]). It is also well established that the party seeking the benefit of collateral estoppel bears the initial burden of demonstrating identity of issue (see e.g. Balcerak v County of Nassau, 94 NY2d 253, 258 [1999]; Matter of Juan C., 89 NY2d at 667; Ryan v New York Tel. Co., 62 NY2d 494, 501 [1984]; Schwartz v Public Admin. of County of Bronx, 24 NY2d 65, 73 [1969]).

" [T]he question as to whether a party had a full and fair opportunity to litigate a prior determination involves a practical inquiry into the realities of litigation'" (Zimmerman v Tower Ins. Co., 13 AD3d 137, 140 [2004], quoting Singleton Mgt. v Shakim Compere, 243 AD2d 213, 217 [1998]).

" the fundamental inquiry is whether relitigation should be permitted in a particular case in light of what are often competing policy considerations, including fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results. No rigid rules are possible, because even these factors may vary in relative importance depending on the nature of the proceedings' (Staatsburg Water Co. v Staatsburg Fire Dist., supra at 153)."

(Chambers v City of New York, 309 AD2d 81, 85 [2003]).

While the doctrine of collateral estoppel may properly be applied to bar relitigation of causes of action involving the issues necessarily covered by a stipulation (see e.g. Gurvey v Lynch, 282 AD2d 367 [2001]), it must nevertheless be recognized that:

" An issue is not actually litigated if, for example, there has been a default, a confession of liability, [or] a failure to place a matter in issue by proper pleading or even because of a stipulation' (Kaufman v Eli Lilly & Co., supra, at 456-457 [emphasis added]). In refusing to give collateral estoppel effect to an in-court stipulation settling a prior action, it has aptly been noted that it can only be assumed that the terms of the settlement became sufficiently attractive to all of the parties in the original action that they decided to forego issue determination by the court' (Dunleavy v First Am. Tit. Ins. [*18]Co., 117 AD2d 952, 953) and that "settlement of the previous case prior to the entry of judgment operated to finalize the action without regard to the validity of the original claim"' (Morrison-Knudsen Co. v Continental Cas. Co., 181 AD2d 500, 501, quoting Peterson v Forkey, 50 AD2d 774, 775; see also, Whitman & Ransom v Revson, 220 AD2d 321; Ott v Barash, 109 AD2d 254, 262-263)."

(Singleton Mgmt., 243 AD2d at 217). From this it follows that the doctrine of collateral estoppel should not be applied to the issues resolved by a stipulation of settlement that were never actually litigated (1829 Caton Realty v Caton BMT Assocs., 225 AD2d 599 [1996]).

In reliance upon the above principals of law, the court rejects the City's claim that the Stipulation is binding on claimant with regard to the existence and location of a rip rap wall on the ground of collateral estoppel. In so holding, it must first be recognized that CPLR 3014 provides that "[c]auses of action or defenses may be stated alternatively or hypothetically." Accordingly, claimant was entitled to plead incompatible theories of recovery in the alternative in the DEC Proceeding (see e.g. Pickering v State of New York, 30 AD3d 393 [2006]; Finkelstein v Warner Music Group, 14 AD3d 415 [2005]).

More significantly, the sole issue that was resolved in the DEC Proceeding was the boundary line for DEC jurisdiction; the issue of the application of local zoning regulations and/or the requisite waterfront yard was not mentioned. Moreover, in fixing DEC jurisdiction with reference to the rip rap wall, neither claimant nor the DEC was addressing or resolving the issue of whether the collection of stones, boulders and/or other accumulated debris constituted a rip rap wall as that term is employed in the zoning regulations now at issue, i.e., whether it was intended to stabilize the shoreline. Rather, the location of the rip rap wall was used solely as the point from which to measure DEC jurisdiction. Accordingly, the matter of whether a rip rap wall that served as a stabilized natural shoreline was present on the property at that time was not litigated (see generally Dempster v Overview Equities, 4 AD3d 495, 498 [2004], appeal denied 3 NY3d 612 [2004]; Stumpf AG v Dynegy Inc., 32 AD3d 232 [2006]; Liddle, Robinson & Shoemaker, 309 AD2d at 691; Brown v Citibank, 304 AD2d 513 [2003]).

That an issue of fact existed with regard to whether a rip rap wall existed on the property is also supported by a letter dated October 7, 1987 from an associate environmental engineer analyst at DEC to claimant's representative, wherein it was stated that

"Department staff have inspected the site. The shoreline was found to be characterized mainly by debris randomly placed and consisting of wood, metal and concrete. Based on this observation it is concluded that the shoreline does not contain the functional and substantial man-made structure' called for in 661.4 (b) (2)."

The City's attempt to have the letter ruled inadmissible is without merit inasmuch as the letter was included as an exhibit to the petition filed in the DEC Proceeding, which the [*19]City introduced into evidence as exhibit 9. In this regard, it must also be noted that the Stipulation itself states that "respondent disputes the presence of a rip rap wall," thereby indicating that the factual issue of whether a rip rap wall existed on the property was not resolved by the Stipulation. In addition, if Malba and DEC agreed that there was a rip rap wall on the property, DEC jurisdiction would be the seaward edge of the rip rap, pursuant to 6 NYCRR 66.1 (b) (ii), and not 30 feet landward therefrom, as provided in the Stipulation.

Finally, it must be noted that the DEC Proceeding was not litigated, but was instead resolved by stipulation, so that no factual issues raised were resolved. Accordingly, claimant's arguments herein cannot be characterized as a collateral attack upon the Stipulation or an attempt to undermine the integrity of the settlement (see generally Freemonde v City of New York, 1 AD3d 560 [2003], lv granted 1 NY3d 509 [2004], appeal dismissed 2 NY3d 794 [2004]; Krajca v City of New York, 305 AD2d 375, 376 [2003]).

Similarly, the City fails to demonstrate that claimant should be equitably estopped from contesting the existence of a rip rap wall on the property because of the execution of the Stipulation:

"In order for estoppel to exist, three elements are necessary: "(1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than and inconsistent with, those which the party subsequently seeks to assert; (2) intention, or at least expectation, that such conduct will be acted upon by the other party; (3) and, in some situations, knowledge, actual or constructive, of the real facts." (21 NY Jur, Estoppel, § 21).' (Matter of Carr, 99 AD2d 390, 394). The party asserting estoppel must show with respect to himself: (1) lack of knowledge of the true facts; (2) reliance upon the conduct of the party estopped; and (3) a prejudicial change in his position' (Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68, 81-82)."

(BWA v Alltrans Express, 112 AD2d 850, 853 [1985]; accord River Seafoods v JPMorgan Chase Bank, 19 AD3d 120, 122 [2005], lv granted 5 NY3d 715 [2005], appeal withdrawn 6 NY3d 751 [2005]). Herein, inasmuch as the City cannot establish that claimant misrepresented any facts in the DEC Proceeding, detrimental reliance or a prejudicial change in position in reliance upon claimant's position in executing the Stipulation, it cannot succeed on a claim of equitable estoppel (see generally Health-Loom v Soho Plaza, 272 AD2d 179, 182 [2000]; BWA, 112 AD2d at 853; Mendez v Reynolds, 248 AD2d 62 [1998]; Investors Ins. Co. v Hartford Fire Ins. Co., 233 AD2d 197 [1996]).

Absent reliance on the Stipulation, there is no evidence in the record to establish the existence of a rip rap wall on the property at the time of vesting. To the contrary, the only evidence before the court is the Aquisition Map filed herein, a topographic map dated June 1994 and a grading map dated February 25, 1999 from the Parks Department, [*20]and the Montrose Survey, all of which support the non-existence of a rip rap wall. Significantly, instead of offering any other evidence to establish the existence and location of a rip rap wall on the property, the City seeks a ruling finding the evidence offered by claimant to be inadmissible. The City's arguments in this regard are unpersuasive.

More specifically, the court finds that the Acquisition Map, having been filed in the instant proceeding, is admissible to support the absence of a rip rap wall on the property. Further, the City's objection to the introduction of the Montrose Survey is found to be particularly disingenuous, since the City's contention that a rip rap wall existed on the subject property is premised exclusively upon the Stipulation, which includes reduced portions of the Montrose Survey, albeit with the inclusion of a line representing a rip rap wall that did not appear on the original survey. Having introduced a copy of the survey into evidence, the City will not be heard to argue that the original is not admissible. Further, since the City's objection to the admission of the original survey could not have been reasonably anticipated by claimant and was not articulated until trial, claimant's submission of an affidavit from the surveyor attesting to its accuracy and his participation in its preparation is held to be sufficient to qualify the survey as admissible (see generally Liuni v Haubert, 289 AD2d 729 [2001], citing Valentine v Smith, 90 AD2d 919, 920 [1982]), particularly in the absence of the submission of any evidence calling the accuracy or integrity of the survey into issue.^[FN7]

The City's contention that the maps prepared by the Parks Department are inadmissible because they were not certified, allegedly because pages could not be located, is also found to be specious. In so holding, this court will not permit the City to rely upon its own refusal to certify the maps to preclude admissibility pursuant to CPLR 4518. In this regard, the court notes that the statute was intended to permit the introduction of a certified governmental record without the need for foundation, not to allow a municipal litigant to defeat admissibility by refusing to certify a document, and thereby gain advantage (see generally Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C4518:10). In the alternative, since the maps were prepared by the City, they are admissible as admissions against interest. This holding is again supported by the absence of any evidence that the maps themselves were inaccurate or altered, along with the Parks Department continuing refusal to certify the maps after [*21]missing pages were located and a complete copy was provided by claimant.^[FN8]

Accordingly, in the absence of any persuasive evidence that a rip rap wall was present on the property on the date that title vested in the City, the court holds that claimant has made a prima facie showing that the waterfront yard for the proposed property is properly measured from the mean high water line. Hence, in addressing multi-family development on Block 3989, the area reduction urged by the City is rejected, since claimant's proposed building is located more than 30 feet from the mean high water line and is not within the area of DEC's jurisdiction, since it is landward of the rip rap wall. Similarly, the court rejects the City's contention that on Block 3994 the building footprint should be reduced by 3,430 square feet, or a total of 10,290 square feet because the building is placed within 30 feet of the top of the rip rap wall. In the first instance, the Ogur site plan clearly places the building 30 feet from the tidal wetlands boundary as per the DEC. While the copy of the Montrose Survey attached to the Stipulation is far from clear, it appears that the DEC boundary line is accurately located by Ogur. Further, inspection of the site plan included in Fleming's letter of explanation reveals that the 30 foot waterfront yard that he claims is required would reduce only a small portion of the back corner of the building footprint, or an area approximately one-quarter of an inch by one-half inch in size. Given the scale of one inch equaling 60 feet, this would be a reduction of the footprint of approximately 112.5 square feet (one-quarter inch = 15 feet x one-eighth inch = 7.5 feet), or a total reduction of 292.5 square feet (two floors at 112.5 square feet + attic 60% of 112.5, or 67.5 square feet), which is far below the reduction of 10,290 square feet that the City claims is necessary. Accordingly, in view of this discrepancy in the site plans and the figures as urged by the City, the court finds claimant's calculations of the requisite waterfront yard on Block 3994 to be more credible, and hence declines to reduce the area of this block as well.

In the alternative, the court also notes that 6 NYCRR 661.6 (a) (4) permits a 3,000 square feet encroachment into wetlands adjacent area.^[FN9] Claimant argues that its proposed [*22]development is within the limits of this provision, while the City does not address the effect, if any, of the regulation.

With regard to single-family development, the court first notes that Fleming's letter objecting to Ogur's placement of structures on his site plans fails to include a site plan illustrating the reductions in area that the City claims are required by the proper calculation of the waterfront yard and the Stipulation. Further, on Block 3989, the five single-family homes shown on the site plan included in Ogur's Rebuttal report are more than 30 feet from the mean high water line and inland from the top of the rip rap wall, so that placement complies with both local zoning requirements and the Stipulation. The City does not contest the buildable area as proposed by Ogur with regard to Block 3994. Accordingly, no reductions in buildable area is necessary with regard to single-family development.

The court further finds that claimant properly plotted the visual corridors, if the blocks are demapped for multi-family units. In contending that the corridors should be 50 feet wide, or the same width as the mapped streets that they extend, claimant relies upon the Montrose Survey, which indicates that the streets are 50 feet wide. In contrast, the City offers no documentary evidence to substantiate its contention that the streets are 60 feet wide. Further, the City fails to refute claimant's prima facie showing that the five single-family homes proposed for each block would not need view corridors pursuant to Zoning Resolution § 62-42.

Hence, in summary, the proposed buildable area of both blocks is as proposed by claimant, i.e.,the maximum buildable area for multi-family units is 104,902 square feet with demapping. If single-family units are built, the court accepts claimant's conclusion that 75,979 square feet could be developed. In so holding, the court finds the 75,979 square feet, as calculated in claimant's Rebuttal Report, to be appropriate, since the City has not demonstrated that five houses could not be constructed on each lot; that no visual corridors are required for single-family homes on the lots contemplated; and that the waterfront yards, as proposed by claimant, are in accordance with both the Zoning and DEC Resolutions. The court also notes that this figure is below the 77,066 square feet that claimant claimed be constructed on the site in its Appraisal Report, apparently in response to the City's assertion that the development of larger homes would not be feasible.

Valuing the subject property is difficult because it is unique, i.e., it is an unusually large, vacant parcel of waterfront property, located in a very desirable, upscale neighborhood that is predominantly developed with spacious, well maintained one- and two-family homes. For this reason, the comparable sales relied upon by both parties are dissimilar in size, location and proximity to the water. Moreover, the appraisal reports offered by both claimant and the City are found to be deficient in numerous, significant respects.

More particularly, claimant contends that the total area of the subject lot is 877,304 [*23]square feet, while the City contends that it is 960,494 square feet. Despite the large size of the parcel at issue herein, the largest lot valued by claimant was 34,290 square feet and the largest valued by the City was 90,000. With regard to multi-family development, the maximum buildable area has been determined herein to be 104,902 square feet, adopting the arguments and calculations offered by claimant. Nonetheless, the largest buildable area valued by claimant was 25,718 square feet, with two lots having only 3,750 square feet, and nine others having less than 10,000 square feet. The lots valued by the City have greater buildable areas than the sales relied upon by claimant, with one lot approximating the buildable area of the subject property, i.e., 100,667 square feet, though the remaining lots have developable area ranging from 19,824 to 49,256 square feet. In view of the enormous differences in size of the lots valued, claimant's assertion that no adjustment for size need be made because "no definitive trend is discernible from the comparable land sales" is unpersuasive in the absence of any empirical data to support its contention (see generally In re Acquisition of Real Prop. by Iroquois Gas Transmission Sys., 227 AD2d 713, 714 [1996] [the appraiser's testimony that no adjustments were made because none were needed, being wholly without basis in the report, could not cure this defect in the appraisal]). Similarly, although the City increases its adjustments for size in its Rebuttal Report, the adjustments made are only 5% and 10%, again without any supporting figures to indicate that the adjustments are justified by the market. Hence, neither party adequately explains its adjustment for size.

In addition, while claimant bases its valuations upon comparable sales including one property in Malba and eight in the nearby neighborhoods of College Point and Whitestone, the probative value of the City's comparable sales is seriously called into doubt because all five of its comparable sales are located significant distances from Malba. Three are located in Far Rockaway, on the other side of Queens, approximately 15 miles away; the sale located in Flushing is approximately three to four miles away from the subject property; and the sale in Bayside is approximately four miles away. Malba, being an upscale, waterfront neighborhood, is certainly a more desirable area than any of the areas relied upon by the City. In fact, the City admits that Far Rockaway is a less desirable area and adjusts the sales 45% to account for location. It fails, however, to adjust the comparable sales in Flushing and Bayside, again offering no objective evidentiary basis to support the amount of the adjustments made.

The City also fails to include any waterfront properties in its appraisal, and instead opines that the resulting adjustment should be 20%, also without any sales data to support its conclusion. In contrast, two of claimant's comparable sales have "water access." Claimant's decision to adjust its sales by 90% for water access and 15% for riparian rights, or what it defined as the right to the land under the water, is equally unconvincing, however, since it is lacking in explanation or empirical support (see generally Lawyers Co-operative Pub. Co. v State, 47 AD2d 122, 125 [1975], affd 39 NY2d 760 [1976] [the court's exclusive reliance upon net adjustments of 87% and 142% was not warranted where evidence of four other sales of industrial park property, the highest and best use for [*24]the subject property, were available to the court]). Significantly, neither party valued similar houses in the Malba area with and without water access to support their adjustments for water access.^[FN10]

Also troubling is the fact that neither claimant nor the City values any sites that were improved with 80 to 91 units, as proposed by claimant. In considering multi-family development, of the 13 comparable sales relied upon by claimant, the largest number of units developed was 16 (eight two-family homes), with the remaining lots being developed with ten or less units. This is far fewer units than it proposed in its site plans. In addition, claimant's valuation includes five parcels that were improved with single-family homes.^[FN11] Significantly, the sales price per FAR for these sales ranged from $60.41 to $103.08 per FAR, while the sales price per FAR for the remaining sales ranged from $21.33 to $61.67 per FAR, before adjustment. Thus, it is clear that the value per FAR is greater when property is developed for single-family units, as alleged by claimant, so that including comparable sales of single-family homes when valuing the site for multi-family development improperly inflates the value.

Similarly, the City relies upon two comparable sales improved with an unspecified number of two-family semi-attached houses, one improved with 16 two-family houses, one improved with two high-rise towers and one development that is not described at all.^[FN12] Hence, the City's comparable sales are not of the same character as the development proposed by claimant.

Claimant's choice of comparable sales is also of questionable probative value, since only two of the parcels were vacant. Although claimant discounted the remaining parcels by 5% to reflect the cost of site preparation and $10 per square foot of buildable area to reflect the cost of demolition, neither estimate is linked to the condition of the property considered or to the cost actually incurred. Moreover, the structures on 11 of the sites were subsequently demolished for re-development, so that it appears that the price paid already took into account that cost. The City's comparable sales are more like the subject property in the respect that all of the parcels relied upon consisted of vacant land. [*25]The City's actual estimation of site preparation costs is also questionable, since it offers no basis for the developments that it alleges would be needed.

Finally, in view of the fact that the comparable sales relies upon claimant occurred between May 23, 1994 and August 14, 1997 and the sales that the City relies upon occurred between September 19, 1994 and December 12, 1995, with the date of vesting being February 19, 1996, it is reasonable to conclude that an adjustment for time is appropriate. In this regard, claimant's assertion that the market was improving at the rate of 5% per year, or .42% per month, during the relevant period is reasonable and shall be accepted in adjusting the comparable sales. The City's assertion that no adjustment for time of sale in necessary it therefore rejected.

The court also finds claimant's adjustment of 5% for all comparable sales because the subject site has excess parking to be without basis. While claimant established that the proposed development could have more than the minimum number of parking spaces required pursuant to applicable zoning regulations, no evidence is offered to support the underlying assumption that all of the comparable sales were improved with the minimum number of required spaces.

Claimant also criticizes the City's choice of comparable sales, asserting that the property located at Beach 64th Street in far Rockaway was sold as part of an affordable housing program, so that the selling prices do not reflect market value. Claimant also alleges that the property located at 75th Road in Flushing was not sold in an arms length sale, since it was sold as part of a larger transaction which included adjacent lands, and it was between related joint venturers. Claimant further asserts that the property located in Dix Hills in Far Rockaway sold for for $950,000, not the $820,000 reported by the City. Finally, claimant alleges that the sale of the property at Bessemund Lane/Hartman Lane in Far Rockaway ^[FN13] was a sale at auction, which also does not reflect fair market value. None of these allegations are sufficiently refutted by the City, thus further weakening the overall integrity of its appraisal.

Thus, as the above discussion makes clear, the comparable sales relied upon by both claimant and the City in valuing the site as improved with multi-family units are not at all similar to the subject property with regard to size, location, water access, or type of development. Further, while both claimant and the City attempt to compensate for these disparities by making adjustments to the sales price per unit of FAR, none of the adjustments are adequately explained or substantiated by objective data. In this regard, in view of the recognition of the fact that claimant adjusted its sales from 10% to 124%, while the City adjusted its comparable sales by 25% to 70%, it must be concluded that the sales relied upon by both parties are simply not "comparable." Further, there is no evidence in the record that would allow the court to fashion its own adjustments to [*26]account for the difference in size, location and nature of the development. The City also fails to address claimant's contention that its comparable sales were flawed in that the sales price of one was improperly reported and others did not reflect the true fair market value.

Hence, since the comparable sales are not sufficiently similar to the subject property to permit meaningful comparison, the adjustments are not adequately expained and/or documented, and the appraisals are otherwise flawed, the court concludes that it is unable to rely upon the appraisals offered by either party with regard to development of the site with multi-family units. Accordingly, although both parties agree that the property could be so developed, in the absence of comparable sales for a similar use in the surrounding area, the court is unable to value the property as developed with multi-family units.

Claimant's choice of comparable sales for development for single-family homes is more persuasive. Most significantly, the five sales relied upon were all developed with single-family, detached homes. Three of the sites are markedly similar to the subject property in that they are located in the immediate vicinity, two have waterfront access and riparian rights and the third is in close proximity to the water. Moreover, the sale that is closest to the subject property had a buildable area of 9,152 square feet and was improved with a house having 7,607 square feet, while another had a buildable area of 8,731 and was improved with a house 6,420 square feet, so that no significant adjustment need be made for size. Inasmuch as this appraisal offers a credible basis upon which to base the value of the subject property, and since the City elects not to value the property as developed with single-family homes, the court is left with only claimant's appriasal upon which to base its award of just compensation. In so holding, the court rejects the City's continuing assertion that large, single-family homes would not be built at the site. Indeed, during its viewing of the site, the court noted that the area was developed with spacious, well maintained homes, in what appeared to be an affluent neighborhood. Moreover, as noted above, claimant's appraisal reveals that single-family homes consistent with the size proposed by claimant were actually built in the area.

As discussed above, however, the court finds that the adjustment of 105% for water access and riparian rights to be excessive. In its appraisal, claimant values single-family homes having water front access at $98.59 and $140.19 per FAR, and properties without water access at $50.71, $54.41 and $58.67, before adjustment. Accordingly, the court finds that a more appropriate combined adjustment for water access and riparian rights would be the 50%, which shall be applied to claimant's comparable sales. The court also rejects claimant's adjustment for the cost of demolition for the reasons discussed above. Claimant's adjustments for time and location, being reasonable, will be accepted as posited. Accordingly, the value of the comparable sales, as adjusted is as follows: [*27]

Address	Section	Land Area	Buildable Area	Area Built	Sales Price/FAR	Waterfront Access	Location	Time	Adj Sale Price/FAR
3 Point Crescent	Malba	18,303	9,152	7,607	$98.59	+35%	0	+6.0%	$139.01
4131 219th St.	Bayside	8,939	4,470	5,324	50.71	+50%	+15%	+4.2%	85.80
25036 41st Dr.	Little Neck	12,000	6,000	7,500	58.67	+50%	+15%	+0.4%	97.04
211 147th St.	Whitestone	24,267	12,134	14,335	54.41	+50%	+10%	-0.9%	86.57
16017 Riverside Dr.	Whitestone	17,462	8,731	6,420	140.19	0	0	-1.1%	138.65
Mean 109.41
Median 97.04

[*28]

Accordingly, the adjusted values result in a mean and median value of $109.41 and $97.04 respectively, instead of the $130.05 and the $133.37 based upon claimant's valuations. Weighing the sales of the property that are most similar to the subject in location, proximity to the water and size of the single-family home built, the court weighs the sales of 3 Point Crescent ($139.01 per square feet of FAR) and 16017 Riverside Drive ($138.65 per square feet of FAR), the court finds that a value of $120 per square feet of FAR is appropriate. Hence, the court determines that the value of the subject property is $9,117,480 ($120 x 75,979 square feet). From this, the cost of demapping and site preparation costs must be deducted.

Cost of Demapping

Bonfilio testified on behalf of claimant that the cost of demapping the streets under ULURP would be $30,000 to $50,000, while Ogur testified that the cost of retaining an architect to demap the streets would be $20,000 and the cost of retaining an engineer would be $30,000. Fleming estimates that the cost of complying with ULURP and the City Environmental Quality Review for single-family development to be $50,000 to $100,000.

The court finds the testimony of Bonfilio and Ogur to be more persuasive with regard to the cost of demapping the papers streets for the development of single-family homes. In this regard, the City offers no proof that an environmental impact statement would be required for the development of ten single-family homes, and without this expense, its estimated cost for demapping is found to be excessive. Accordingly, $50,000 shall be deducted from the value of the property for the development of single-family units.

Site Preparation Costs

The court finds that claimant's conclusory adjustment of $10 per square foot for the cost of demolition and a 5% discount for demapping to be without basis, since the estimate fails to take in to account the structures that were existing on the site or the specific improvements that would be needed. The City's estimation of the costs for site development is similarly lacking in basis and, moreover, does not address single-family development.From this it follows that in the absences of sufficient evidence upon which to estimate demolition and/or site development costs, no such adjustments can be made.

For the above discussed reasons, the court is constrained to value the property as developed with single-family units. In reliance upon the comparable sales offered by claimant, since the City chose to value the property only as developed with multi-family units, the court finds that the property should be valued at $120 per square foot of buildable area, which has been determined to be 75,979 square feet, for a value of $9,117,480. After subtracting the cost of demapping of $50,000 the total sum to awarded to claimant is $9,067,480.

Settle order on notice. [*29]

E N T E R

J. S. C.