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Highest and Best Use is Measure of Damages—Unconsummated Purchase Contract Is Valid Proof of Value

The Second Department explained the measure of damages for a taking (highest and best use) and determined an unconsummated purchase contract was valid proof of value:

“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” … . The determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future … . Here, contrary to the Sewer District’s contentions, Split Rock satisfied its burden of demonstrating that the highest and best use of the subject property was for the commercial development of an office center.

A property’s market value is defined as ” 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'” … . “[T]he purchase price set in the course of an arm’s length transaction of recent vintage, if not explained away as abnormal in any fashion, is evidence of the highest rank’ to determine the true value of the property at that time” … . Matter of Western Ramapo Sewer Extension Project, 2014 NY Slip Op 05889, 2nd Dept 8-20-14

 

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