United States v. 26.07 ACRES OF LAND, ETC., C.P. 86.
| Citation | 126 F. Supp. 374 |
| Decision Date | 29 November 1954 |
| Docket Number | No. C.P. 86.,C.P. 86. |
| Parties | UNITED STATES of America, Petitioner-Plaintiff, v. 26.07 ACRES OF LAND, MORE OR LESS, IN THE TOWN OF HEMPSTEAD, COUNTY OF NASSAU, STATE OF NEW YORK, and Jacob Gellman, et al. |
| Court | U.S. District Court — Eastern District of New York |
Harry T. Dolan, Sp. Asst. to the Atty. Gen., for petitioner-plaintiff, the United States.
Ralph W. Brown, New York City, for defendant New York Tel. Co. (Tract 308), by Kenneth J. Lucey, Brooklyn, Walter K. McFaul, Earle M. Simonson, New York City, of counsel.
Otto M. Buerger, New York City, for defendant Long Island R. Co. (Tract 306).
Fischer & Bodin, New York City, for defendant Sebastian DiPalermo, etc. (Tract 305), by Harry Sabbath Bodin, New York City, of counsel.
Louis E. Greenberg, New York City, for defendant Alex Fedoryszyn (Tract 238).
Hillard Pollack, Woodmere, for defendant, Lena Lipton (Tract 236).
This condemnation proceeding originally involved more than seventy parcels of real estate in the vicinity of Mitchell Field. The Government has taken some of the parcels in fee, and it has taken so-called "avigation easements" over certain other parcels not taken in fee. All the claims have been settled with the exception of the taking of avigation easements over six parcels, namely, tracts numbered 234, 236 and 238, located in a residential zone, and tracts numbered 305, 306 and 308, located in an industrial zone.
Title was vested in the Government by the filing of a declaration of taking on June 26, 1952, so that it is as of that date that the valuation of the avigation easements taken over the above enumerated parcels must be fixed.
The avigation easement appropriated by the Government is described in the declaration of taking as a "perpetual and assignable right of way and easement in and over" the above parcels and others "which lie within a clearance zone having the shape and location described in Schedule `C' attached to the declaration of taking for the establishment and use of a glide angle plane for the flight of aircraft at an angle of fifty to one with the ground; including the continuing right in the United States to cut timber, remove buildings, and clear the zone of any and all obstructions extending above the glide angle plane and including the right of ingress and egress to and from the land to effect and maintain the necessary clearance; reserving however, to the land owner, and his heirs and assigns, all such rights and privileges as may be used and enjoyed without interfering with or abridgement of the easement acquired by the United States."
After the taking of testimony was completed the Government was permitted, with the consent of all parties, to amend the original declaration of taking by filing an amendment thereto on August 24, 1954 which corrected the description of the easement as to the starting point, but this error in the original description did not materially affect the issue of just compensation or the testimony given by the various witnesses at the trial.
The easement which the Government has taken in the airspace over the defendants' property is in the nature of a runway approach zone for landing and takeoff purposes to the northwest-southeast runway at the Army Air Base at Mitchell Field.
The heights at which the easement crosses the various parcels is indicated on a project map (Govt. Exh. No. 1) and are substantially as follows for the parcels involved herein:
Parcel 234 — 32 feet
Parcel 236 — 32 feet
Parcel 238 — 36 feet
Parcel 305 — 33 to 36 feet
Parcel 306 — 32 to 38 feet
Parcel 308 — 32 to 36 feet
Therefore, the heights to which buildings or structures can be erected on these parcels by present and future owners are limited to the above measurements.
According to the zoning map (Govt. Exh. No. 6) Parcels 234, 236 and 238 are located in Residential Zone "B" where the maximum building limitation is 2½ stories or 45 feet. However, all the witnesses agreed that the highest and best use of these parcels would be the typical dwelling in this area, i. e. a one or one and one-half story house which would not exceed in height the minimum limitations imposed by the easement.
Parcels 305, 306 and 308 are located in an industrial zone where the maximum height of structures by implication is 85 feet. But here again all the qualified experts agreed that the highest and best use of these industrial parcels would be a modern one or two story industrial building which would not exceed in height or protrude into the easement appropriated.
Parcel 305 is used in connection with the manufacture of cement blocks and has never been used for any other purpose. A small one-story building, approximately 40 by 50 feet, and 15 feet in height, is located on the parcel, but outside the perimeter of the easement.
Parcel 306 is a strip of land 22 feet wide and approximately 366 feet long which is occupied by 341 lineal feet of industrial railroad track owned by the Long Island Rail Road Company. Obviously this parcel is too narrow to permit the construction of any industrial building thereon.
Parcel 308 owned by the New York Telephone Company is used as a pole storage yard and is improved with a cyclone wire fence, some paving and a small one-story shed.
There has been no showing whatsoever that the taking of this avigation easement has in any way interfered with or impaired the utility of these existing structures, nor any other structures which it could reasonably be anticipated might be erected thereon, even if these parcels were to be put to what has been conceded to be their highest and best use. In fact the defendants' experts conceded that the limitation of height to future structures as a result of the imposition of this easement was inconsequential as a depreciating factor, since any future residential or industrial structure would not extend into the glide angle plane.
The very substantial percentages of depreciation in market value (ranging up to 75%) which the defendants' experts attributed to the imposition of the easement was based on so-called "proximity damage", i. e. damage resulting from the location of these parcels under the glide angle plane and caused...
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