United States v. 63.04 Acres of Land, 278
| Decision Date | 03 June 1957 |
| Docket Number | Docket 24233.,No. 278,278 |
| Parties | UNITED STATES of America, Petitioner-Plaintiff-Appellee, v. 63.04, ACRES OF LAND, more or less, situate at LIDO BEACH, near the City of Long Beach, TOWN OF HEMPSTEAD, COUNTY OF NASSAU, STATE OF NEW YORK, and Irving A. Nemerov et al., Defendants-Appellants, Town of Hempstead, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Perry W. Morton, Asst. Atty. Gen., Harry T. Dolan, Sp. Asst. to Atty. Gen., Roger P. Marquis and Elizabeth Dudley, Attorneys, Department of Justice, Washington, D. C., for petitioner-plaintiff-appellee.
Nathan D. Shapiro, Brooklyn, N. Y., for Bessie N. Shapiro, Samuel Kresberg and Benjamin Kresberg.
Jacob Patent, Brooklyn, N. Y., for Gilbert D. Paisner et al.
Leonard R. Fisher, New York City, for Irving Nemerov.
Paul Windels, New York City, and Joseph Margolis, Brooklyn, N. Y., of counsel, for defendants-appellants.
Isidor E. Leinwand, New York City, for Sam H. Lipson, Trustee in Bankruptcy for William T. Nemerov.
John A. Morhous, Hempstead, N. Y., and B. Thomas Pantano, for defendant-appellee Town of Hempstead.
Before HINCKS, STEWART and LUMBARD, Circuit Judges.
The defendants in this condemnation proceeding appeal from a judgment of the district court, sitting without a jury, which decreed that (1) the property condemned amounting to 58.26 acres1 is to be valued at $3,000 an acre; (2) the severance damages for certain adjacent property to the east and west of the condemned lots are 50% of the value of that property; (3) defendants do not have title to certain other adjacent property to the north of the condemned lots called the "bulge" which extends to the Reynolds Channel on the north side of Long Beach Island. Defendants contend, inter alia, that evidence of a sale subsequent to the taking was improperly excluded from the valuation of the condemned property. We agree with this contention and reverse and remand for a new trial on that issue and any related recomputations for severance damages on the property to the east and west of the condemned land. We affirm the finding that the defendants did not have title to the bulge.
Defendants own lots A-101, A-102 and A-103 in Lido Beach, on Long Beach Island, in the Town of Hempstead, Nassau County, N. Y. The island is bounded on the north by Reynolds Channel and on the south by the Atlantic Ocean. From west to east it contains the four communities of Long Beach, Atlantic Beach, Lido Beach and Point Lookout. Defendants' property fronts on the north side of Lido Boulevard which runs west and east the length of the Island.
Atlantic Beach and Long Beach are thoroughly developed communities which, although at one time primarily summer communities, have recently become year-round communities with many costly residences. Point Lookout is developing along similar lines. The development of Lido Beach lagged far behind the other three because zoning restrictions south of the Boulevard blocked any substantial growth. In addition, there were cesspool and septic tank restrictions, a veterans' housing project which had fallen into disrepair, and poor police protection which permitted the beach to become a rendezvous for disorderly elements.
Restrictive zoning provisions on the land south of the Boulevard were lifted in the fall of 1953. Within about a year, six costly cabana clubs were built south of the Boulevard. The veterans' housing project was removed and replaced by a new grade and junior high school and a golf course was built. The cesspool restrictions were also removed. It is undisputed that property values south of the Boulevard rose substantially.
The land north of the Boulevard was zoned for residential use, but it required filling at considerable expense.2 There was testimony that the same condition had prevailed at Atlantic Beach and that many expensive homes had been constructed on filled-in land.
On July 2, 1954, the United States filed a notice that it was taking approximately 57.26 acres of the defendants' property north of the Boulevard — Lots A-101, A-102 and A-103. The declaration of taking was filed on December 20, 1954. The lots involved were not complete parcels since a triangular strip of seven acres to the southwest of Lot A-101 was not taken, and Lot A-103 was a corresponding triangle of 3.70 acres cut out of a parcel to the east of Lot A-102. However, defendants sought compensation not only for the property taken but also severance damages to their property to the east and west which was not taken but detrimentally affected. In addition, defendants claimed title to land immediately north of the condemned property extending to the Reynolds Channel and known as the "bulge," because of its shape. They sought severance damages for this property as well.
The government valued the condemned property at $2,500 per acre, with severance damages of 50% of the value of the property east and west of the condemned area. It denied that defendants had title to the "bulge" property. The Town of Hempstead intervened in the proceeding, and asserted title in the "bulge" against the defendants.
At the trial, the government's expert witness relied on five3 sales of property north and south of the Boulevard to arrive at a value of $2,500 per acre.
The three sales to the south were as follows:
The two sales to the north were as follows:
Defendants repeatedly attempted to introduce evidence of a sale at $11,000 per acre by the government of Lido Beach property north of the Boulevard and northwest of the condemned property.5 Bids for this sale were solicited in July 1954 and apparently received until the sale was consummated on September 15. The evidence was offered for these purposes: (1) on direct examination, to show that the admittedly high property values south of Lido Boulevard "spilled over" to the northern property; (2) on cross-examination, to rebut the governmental witness's assertion that the cabana club development to the south, the golf course, and the school were detrimental to property values. The trial judge consistently excluded the evidence of the sale on the ground that the sale took place after the date of taking, July 2, 1954, and that he would not consider any sales after that date.
After the trial, the district judge found (1) that the value of the condemned property was $3,000 per acre, totalling $174,780 for the 58.26 acres; (2) that severance damages to the adjacent property east and west of the condemned lots were 50% of their value — $3,000 per acre — which amounted to $11,280 for 7.52 acres; and (3) that defendants did not have title to the bulge.
Defendants appeal all three findings, but two groups of them, Sam Lipson as trustee in bankruptcy for William T. Nemerov, and the Paisner appellants, do not appeal the severance damages on the adjacent territory east and west.
Defendants contend that the property is worth $12,000 an acre and that the district court should not have relied on the government's witness for he was far less qualified than the defendants' and his testimony was contrary to the weight of the evidence.
It is apparent from the similarity between the court's figure of $3,000 and the government's figure of $2,500 that the court relied heavily on the government expert's testimony. Defendants attack his qualifications and argue that the district court should not have...
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