Mattice v. State
| Decision Date | 23 November 1976 |
| Docket Number | Nos. 54779,54780,s. 54779 |
| Citation | 391 N.Y.S.2d 271,89 Misc.2d 330 |
| Parties | Luther G. MATTICE and Helen Estella Ash, Claimants, v. The STATE of New York, Defendant. Claim |
| Court | New York Court of Claims |
These Claims, timely filed, are for the appropriation in fee of Claimants' land pursuant to Section 30 of the Highway Law. On July 3, 1969, the State (acting for the Power Authority) appropriated 21.25 acres of land (Map No. 3, Parcel No. 40). Thereafter and on February 26, 1970, the State appropriated an additional 130.66 acres (situated adjacent to the area previously taken) of Claimants' land (Map No. 12, Parcel No. 95).
The valuation approach utilized by Claimants raises a threshold issue which must be analyzed and resolved before the Court can proceed to consider damages suffered by the takings.
Specifically, the appraiser considered each of the appropriations herein separately. He was of the view that the second taking was not related to the first, i.e., that the second appropriation was not within the 'original scope of the project' as contemplated by the Power Authority of the State of New York (hereinafter referred to interchangeably as the 'Authority' or 'State'). Therefore, he considered the remainder after the first taking enhanced by the presence of the adjacent public improvement to the extent of altering the highest and best use of the lands east of the highway and the frontage area west of the highway from an operating dairy farm with enhancement for the historical Manor House to commercial lands improved by the Manor House with an excellent view of the power pool and pumping station.
This premise and his approach considerably influenced his appraisal of consequential damages resulting from the first appropriation and as well, the value of the remainder lands and improvements appropriated by the second taking.
When lands are appropriated and a public improvement is erected thereon, the market value of adjacent lands may increase due to the proximity of that improvement. If such adjacent lands are subsequently appropriated, the owner is entitled to be compensated for the market value thereof as enhanced by the proximity of the improvement. If, however, the adjacent lands were, from the beginning, within the scope of the public improvement project, the owner thereof is not entitled to any enhancement value simply because his property was appropriated subsequent to the taking of neighboring lands. United States v. Miller, 317 U.S. 369, 376--377, 63 S.Ct. 276, 87 L.Ed. 336 (1943).
This rule has been followed in New York. See, Andrews v. State of New York, 19 Misc.2d 217, 188 N.Y.S.2d 854 (Ct. of Claims, 1959), aff'd 11 A.D.2d 599, 200 N.Y.S.2d 451 (Third Dept., 1960), aff'd 9 N.Y.2d 606, 217 N.Y.S.2d 9, 176 N.E.2d 42 (1961); Sparks v. State of New York, 39 A.D.2d 822, 333 N.Y.S.2d 189 (Fourth Dept., 1972).
As stated by the U.S. Supreme Court in Miller (supra 317 U.S. at p. 377, 63 S.Ct. at p. 281),
The precise issue presented herein, therefore, is whether or not the second appropriation of 130.66 acres by the filing of Map No. 12, Parcel No. 95 was probably within the scope of the Blenheim-Gilboa Pumped Storage Power Project when the State became committed to the project.
This critical issue has been treated as a question of law for the Court to decide, according to United States v. Reynolds, 397 U.S. 14, 20--21, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970) and Wardy v. United States, 402 F.2d 762, 763 (Fifth Cir., 1968). The paucity of reported decisions in New York is of some partial assistance in delineating those factors which should be considered. Therefore, this Court has additionally reviewed other federal judicial authority on the theory of enhancement treating the so-called Miller rule which has been accepted as the rule to follow in the State of New York. (See, Andrews v. State of New York, supra; Sparks v. State of New York, supra; Fitzgerald v. State of New York, 10 Misc.2d 1046, 173 N.Y.S.2d 661 (Ct. of Claims, 1958), aff'd 9 A.D. 486, 194 N.Y.S.2d 569 (Third Dept., 1959); Matter of City of New York (Lincoln Sq. Prop.), 22 Misc.2d 619, 198 N.Y.S.2d 248 (Supreme Ct., 1960)).
The following is a delineation and discussion of those factors to be considered in application of the Miller rule.
First, the fact that a claimant did not know that his land would be included in the public improvement project does not support a finding that his lands were not probably within the scope of the project. Fitzgerald v. State of New York, 9 A.D.2d 486, 487, 194 N.Y.S.2d 569, 570. However, proof that a claimant or the general public could or did have such knowledge would tend to negate any enhancement and is a factor that should be considered. See, Andrews v. State of New York, 19 Misc.2d 217, 223, 188 N.Y.S.2d 854, 859.
Second, it is not necessary that the project be constructed before such enhancement becomes available. The Authority urges that there can be no enhancement unless the adjacent public improvement has been actually erected upon the land, citing Matter of City of New York (Lincoln Sq Prop.), supra, and 19 N.Y.Jur., Eminent Domain, § 149. The cited authorities are, in this Court's view, in error. The basis for this statement in the Lincoln Square decision was a rather literal and narrow interpretation of language set forth in the Miller decision, 317 U.S. at p. 376, 63 S.Ct. 276. Such an interpretation has not been followed by the Federal courts in applying the Miller rule. See, United States v. 172.80 Acres of Land, etc., 350 F.2d 957, 959 (3rd Cir., 1965); United States v. 244.48 Acres of Land, etc., 251 F.Supp. 871, 873 (D.C., W.D.Pa., 1966). Further, this interpretation does not square with other judicial authorities in New York which have permitted such enhancement consideration where the adjacent project is In the process of development. See, Sparks v. State of New York, 39 A.D.2d 822, 333 N.Y.S.2d 189; Killip Laundering Co. v. State of New York, 32 A.D.2d 579, 580, 299 N.Y.S.2d 33, 34 (Third Dept., 1969).
Third, a distinction must be kept in mind between the time of 'onset' of such project enhancement as opposed to the time of determination of its 'value'. This Court is of the view that the correct rule was stated by District Judge Willson in United States v. 244.48 Acres of Land, etc., supra at p. 873, as follows:
'It seems to me that the answer to this proposition is that any enhancement due to the proximity of this particular land to the project occurred when the original project plans were announced, but the enhancement value in terms of money may not have been generally realized by the public and even the landowners until work on the Reservoir had commenced and attention was drawn to the location in which the instant land was left with relation to the dam.'
In other words, an enhancement occurs when the project plans are first announced but the value thereof cannot be determined until there is some public (market) awareness of the relationship of the subject land to the project. As discussed, this market awareness and reaction could occur prior to any erection of the project.
Fourth, a description of subject lands in the original plans for the project is not required (United States v. Crance, 341 F.2d 161 (8th Cir., 1965)), but the presence or absence of such contemplated takings at an early planning stage are relevant factors to be considered (United States v. 172.80 Acres of Land, etc., supra; United States v. 327 Acres of Land, etc., 320 F.Supp. 844 (D.C., N.D.Ga., 1971)). See also, 14 A.L.R.Fed. 806.
Fifth, the lapse of time between the original and the supplemental takings is a factor to be considered. Blas v. United States, 261 F.2d 636 (9th Cir., 1958); United States v. 327 Acres of Land, etc., supra.
Sixth, the physical location of the subject lands to the project may be a significant factor. United States v. Crance, supra; United States v. 327 Acres of Land, etc., supra.
Finally, other factors such as a demonstrated change in government policy or the showing that a particular need was obvious from the beginning may, in an appropriate case, be relevant. See, United States v. 172.80 Acres of Land, etc., supra; John L. Roper Lumber Co. v. United States, 150 F.2d 329 (4th Cir., 1945); United States v. 327 Acres of Land, etc., supra.
With these pertinent factors in mind, the Court now proceeds to an analysis of the factual portrayal proffered by the record herein.
Pursuant to legislative enactment (Laws of 1968, Chapter 294), the Power Authority conceived the notion of the Blenheim-Gilboa Pumped Storage Power Project. (See, Ex. 24, pp. 26, 27). After investigation, studies and research, an application for a license for this project was forwarded to the Federal Power Commission on August 15, 1968. (Ex. 11) The license (Ex. 10) was issued on June 6, 1969. On June 16, 1969, the Power Authority accepted the license and also authorized acquisition of the lands required for the upper and lower reservoirs. (Ex. 8) That portion of Claimant...
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