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CLAIMANT WAS ENTITLED TO MORE COMPENSATION FOR THE 3.86 ACRES TAKEN FOR AN AIRPORT RUNWAY AND THE 80.72 ACRES TAKEN FOR AN AVIGATION (RUNWAY APPROACH) EASEMENT; PURSUANT TO THE ISSUES OF CONTIGUITY, UNITY OF USE AND UNITY OF TITLE. THE ENTIRE PARCEL, NOT A SINGLE SMALLER PARCEL, WAS AFFECTED BY THE TAKING (THIRD DEPT).

The Third Department, in a comprehensive decision too detailed to fairly summarize here, determined claimant was entitled to more compensation for 3.86 acres for an airport runway and 80.72 acres for an avigation easement appropriated by the County. The court considered the following issues: (1) the entire 97.48 acres, as opposed to a 12.9 acre portion, was affected by the taking because there was contiguity, unity of use, and unity of title or ownership; (2) the pretaking value of the land; and (3) the diminution of value based on the avigation easement which affected the height of buildings which could be constructed on the easement. With respect to contiguity, unity of use and unity of title, the court wrote:

Contiguity will be found between parcels when they are “adjacent and lack[] any physical boundary . . . [and are] capable of being traversed” … . “A public highway actually traveled . . . running through a large tract devoted to one purpose does not necessarily divide it into independent parcels, provided the owner has the legal right to cross the intervening strip of land” … . Given the adjacent nature of the parcels and that claimant has a 200-foot right-of-way to cross the power line fee, we find that the parcels meet the element of contiguity … .* * *

… [C]laimant’s planned development, which included retail on the southern parcel and a technology park on the northern parcel, was not merely a “prospective use existing only in the mind’s eye of [claimant] or based upon claimant’s history as a developer” … , but rather a bona fide development, planned thoroughly, whose progress was cut short by the condemnation. As such, the evidence has established that the elements of contiguity, unity of use and unity of ownership have been met … . Matter of County of Warren, 2020 NY Slip Op 02217, Third Dept 4-9-20

 

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