$1.4 MILLION EMINENT DOMAIN AWARD AND JUDGMENT UPHELD ON APPEAL.

May 16, 2012

$1.4 MILLION EMINENT DOMAIN AWARD AND JUDGMENT TO PROPERTY OWNER AFFIRMED BY SECOND DEPARTMENT ON APPEAL.

The undeveloped property at issue in this condemnation proceeding consisted of 10.11 acres pre-taking and the 7.53 acres post taking. Both the claimant-property owner and petitioner-municipality agreed that a residential subdivision was the highest and best use of the subject property. At the nonjury trial held in this matter, the parties offered opposing evidence as to the density and scope of the subdivision that could be built on the property. The trial court credited the evidence offered by the property owner that it was reasonably probable that the entire 10.11 acres of the subject property could have been developed as a 38 units subdivision prior to the partial taking and that the entire remaining 7.53 acres could have been developed as a 21 unit subdivision. The trial court utilized an average value of the “comparables” offered by the municipality’s appraiser at trial and issued its condemnation award accordingly. On appeal, the Second Department found that there was no basis to disturb the trial court’s determination as to the properties pre- and post-taking highest and best uses.

Additionally, the Second Department held that the municipality’s post decision application to dismiss the compensation award as abandoned pursuant to 22 NYCRR 202.48 was without merit because there was no direction in the decision to settle or submit a judgment on notice and the relief awarded was solely monetary in nature.