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Archive | Highest and Best Use

October 29, 2018

MUST A HIGHEST AND BEST USE BE FINANCIALLY FEASIBLE?

It is the general rule that “just compensation” is the fair market value of the property at the date of the taking, Matter of Board of Water Supply of City of New York, 277 NY 452 (1938); County of Erie v Fridenberg, 221 NY 389 (1917), and the fair market value is the price for which the property would sell if there was a willing buyer who was under no compulsion to buy and a willing seller who was under no compulsion to sell.  Keator v State of New York,… read more

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Posted in Financial Feasibility, Highest and Best Use
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December 27, 2017

ANOTHER THING ABOUT MATTER OF TOWN OF OYSTER BAY v 55 MOTOR AVENUE COMPANY, LLC

In our last posted blog, we criticized the Second Department’s decision in the above case for confusing what is necessary to prove a reasonable probability of rezoning and the ability to develop land pursuant to a special permit. But there is another problem with the Appellate Division’s decision.  It held that although three parcels were physically contiguous and had unity of ownership, parcel 3 could not be considered as having unity of use because the claimant had entered into a ground lease for parcel 3 seventeen months before the vesting… read more

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Posted in Highest and Best Use, Unity of Ownership, Valuation Free and Clear
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January 31, 2017

CAN GOVERNMENT DESIGNATE PROPERTY TO BE ACQUIRED AND RESTRICT FUNDAMENTAL RIGHTS?

The North Carolina Supreme Court held that the filing of a map which designates property for future highway acquisition and prohibits development in the interim is a taking.  Kirby v North Carolina Dept. of Trans., 368 N.C. 847 (2016). The Court held, “upon NCDOT’s recording of the highway corridor maps at issue here, the Map Act restricted plaintiffs’ fundamental rights to improve, develop, and subdivide their property for an unlimited period of time.  These restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent… read more

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Posted in Highest and Best Use, Inverse Condemnation, Zoning
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October 10, 2016

A Perfect Example of The Highest And Best Use Concept

On September 21, 2016, New York’s Appellate Division, Second Department, handed down Matter of 730 Equity Corp. v New York State Urban Development Corp., __ AD3d ___, 2016 NY Slip Op 06086 (2d Dep’t 2016). If there was an eminent domain case book, this decision would be included as an example of establishing a highest and best use in a condemnation. The claim involved a one-half acre parcel of vacant land on Atlantic Avenue, Brooklyn, New York.  The land was under a long term triple net lease to a major… read more

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Posted in Highest and Best Use, Recent cases, Zoning
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June 21, 2016

Valuation of Property in an Eminent Domain Case

I argued a case on June 20, 2016 in the Appellate Division, Second Department which involved an appeal by the Condemnor, New York State Urban Development Corporation.  The case arose in the Atlantic Yards – Barclays Center project, Brooklyn.  The case, decided by Justice Wayne Saitta, is reported at 43 Misc3d 1226(A), 2014 N.Y. Misc. LEXIS 2275 (Sup. Ct., Kings Co., 2014). The decision awarded claimant $9,186,000 as against an appraisal for $2,075,000 by Condemnor. The trial court found that there was a “very strong probability” of a zoning change… read more

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Posted in Eminent Domain, Highest and Best Use, Recent cases
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