An appellate court upheld an award for condemnation of land underwater as well as denial of consequential damages for a partial taking, in a case where part of a residential subdivision was taken for parkland. In Matter of Board of Commr. of Great Neck Park Dist. of Town of N. Hempstead v Kings Point Hgts., LLC, the Appellate Division Second Department upheld the decision of the lower court noting that if the lower court’s “explanation of its award is supported by the evidence, it is entitled to deference and will not be disturbed on appeal….”
The property at issue was just over 6 acres, including almost an acre of underwater land. The taking was 2.3 acres, including the underwater land. The property owner sought consequential damages claiming that by creating a park the value of the remaining land it owned was reduced, as the park reduced privacy. The park district’s appraiser claimed that the park enhanced the value of the remaining property because it provided an unobstructed view of Long Island Sound as a result of restrictions on the use.
The Court noted in determining damages:
“[t]he measure of damages for a partial taking of real property is the difference between the value of the whole property before the taking and the value of the remainder after the taking…Consequential damages are measured by the difference between the before and after values of the property, less the value of the land and improvements appropriated…The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time…” and where a partial taking enhances the value of the remaining land “the Supreme Court was precluded from taking that enhanced value into account in rendering the award.”
The Court concluded the determination by the lower court that the park actually enhanced the value of the remaining land was supported by the evidence and therefore the lower court was correct in not modifying the award based upon the effect of the taking on the remaining land. As for the issue of land underwater, the Court noted there were letters patent granting title to that land and therefore the property owner was entitled to damages for the taking.
-Steven Silverberg