The Second Department determined claimants did not demonstrate it was feasible the highest and best use of condemned waterfront property would be high-rise residential. The court explained the law:
The bedrock of eminent domain law is the principle that, when private property is taken for public use, the condemning authority must “compensate the owner so that he may be put in the same relative position, insofar as this is possible, as if the taking had not occurred” … . “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” … . Moreover, “[i]t is necessary to show that there is a reasonable possibility that the property's highest and best asserted use could or would have been made within the reasonably near future, and a use which is no more than a speculative or hypothetical arrangement may not be accepted as the basis for an award”… .
” [A] condemnee may not receive an enhanced value for its property where the enhancement is due to the property's inclusion within a redevelopment plan'” … . Thus, for example, property zoned for industrial use ” should be valued in accordance with the industrial zoning designation which would apply if the redevelopment plan did not exist,' for [a] condemnee is only entitled to compensation for what it has lost, not for what the condemnor has gained'” … . Matter of Queens W. Dev. Corp. v Nixbot Realty Assoc., 2016 NY Slip Op 03746, 2nd Dept 5-11-16
EMINENT DOMAIN (CLAIMANTS DID NOT DEMONSTRATE THE FEASIBILITY OF USE OF THE CONDEMNED LAND FOR HIGH-RISE RESIDENTIAL AS THE HIGHEST AND BEST USE)/HIGHEST AND BEST USE (EMINENT DOMAIN, CLAIMANTS DID NOT DEMONSTRATE THE FEASIBILITY OF USE OF THE CONDEMNED LAND FOR HIGH-RISE RESIDENTIAL AS THE HIGHEST AND BEST USE)