Never Be Bound by What the Condemnor Declares in a Taking

We witness more and more State appropriations where the NYDOT declares on its appropriation map that the taking is “Temporary.”  Yet, after the filing of the map and ergo the appropriation, the State alters the land in such a way that it is severely damaged.  The new roadway may limit access onto the remainder; it may reduce parking, or otherwise permanently physically alter the property.

The scope of an easement is generally determined by the four corners of the taking documents themselves.  LIRR v LILCO, 64 NY2d 1088, 1089 (1985).  If there is any ambiguity regarding what the Condemnor is permitted to do in accordance with the easement, such is to be strictly construed against the Condemnor.  Lake George Assoc. v State, 7 NY3d 475, 481 (2006); Clark v State, 15 NY2d 990 (1965); Segar v State, 445 NYS2d 894 (Ct. Claims 1981).

“The words of the taking are to be construed in the light of its apparent object and the extent of the limitation imposed on Claimant’s use is to be determined by the language used and upon consideration of the necessity to be supplied; no greater limitation will be placed on Claimant’s exercise of property rights than the public use requires.”  Onogaga v Sargent, 92 AD2d 743 (4th Dept 1983); Jafco Realty Corp v State, 18 AD2d 74 (1963).

Damages should be calculated by deciding if the temporary easement would impact how much a market purchaser would pay for the subject given the encumbrances on the property.

The primary case regarding the scope of easements taken in condemnation is Kravec v StateKravec v State, 40 NY2d 1060 (1976).  Therein, the State took a permanent easement for drainage, reserving to the owners the use of the property so long as it does not interfere with the State’s easement.  The Court held that the broadly defined easement gave the State a “virtual veto” over Claimant’s use of the property “because only the State knows or can predict what size structures or impairments it may erect under the easement or how it will use the easement and whether an activity by Claimants will interfere or not.”  Id. at 1061.  Therefore, the court found that the permanent easement landlocked the property and left Claimants without a clear right of access. Id.

In light of the above, the damages are “determined on the basis of what the [Condemnor] had a right to do” pursuant to the terms of the easement that it has condemned.  Weber v State, 25 AD2d 584, 586 (3d Dept 1966).

In a recent case, the acquisition document delineates both the rights of the State and the property owner.  It provided,

A permanent easement for the benefit of the MTA, the LIRR and their respective successors and assigns…in, on, under and over the property delineated above for the purposes of (i) ingress and egress for vehicles and persons, and (ii) installation, operation, maintenance, repairs, replacements and removal of Utilities (as hereinafter defined) as may be deemed necessary or convenient by the MTA, the LIRR or their respective successors and assigns….

RESERVING, however, to the owner of any right, title or interest in and to the property…the right of access and the right of using said property and such shall not be further limited or                restricted under this easement beyond that which is necessary to effectuate its purposes for the construction or reconstruction of the herein identified project.

“In valuing a property for condemnation purposes, the property should be neither enhanced or diminished by the impact of the project on the value of the property.”  Matter of City of NY (Fifth Amended Brooklyn Ctr. Urban Renewal Area, Phase 2), 41 Misc. 3d 1212[A], 1212A [Sup Ct, Kings County 2013]) citing US v Miller, 317 U.S. 369 (1943).

In Pollak v. State the Court of Appeals opined regarding access that is not granted as a legal right.  The Court stated, “The State was and is under no legal constraint to permit claimants to use the roadway nor is the State obligated, by positive law, to maintain the roadway in serviceable condition. The fact is that deprivation of the legal right to access rendered claimants’ titles unmarketable. In like circumstances, we have held that the absence of an explicit reservation of a right to access in the original appropriation may not be cured by provisional expedients, offered by and subject to the grace of the State.”  Pollak v State, 41 NY2d 909, 910 [1977] (emphasis added) citing Kravec v State of New York, 40 NY2d 1060; Wolfe v State of New York, 22 NY2d 292.

It has been opined that when a condemnation reduced access making it “insufficient to permit passage of claimant’s vehicles and, in practical effect, eliminated all meaningful access for purposes consistent with the property’s industrial zoning, there can be little doubt that such diminution in access, because it is the functional equivalent of access denial, [it] is compensable.”  In re Acquisition of Real Prop. by County of Schenectady, 194 AD2d 1004, 1007 [3d Dept 1993] citing Rider v State of New York, 192 AD2d 983 [3d Dept 1993].

Further, the Court of Appeals has opined, “Pollak makes clear that damages must be paid unless the condemnee retains ‘legal access’—i.e. a legally enforceable right to entry and exit.  Damages are to be quantified based on a calculation of the damages at the time of the taking with no effect given to subsequent efforts to reestablish access.”  Lake George Assoc. v State, 7 NY3d 475, 480 [2006] citing Wolfe v State of New York, 22 NY2d 292, 295 [1968]; Kravec v State of New York, 40 NY2d 1060, 1062 [1976].  Further, “Such a procedure or device clearly offends against our settled rule prohibiting the State from attempting to reduce its damages by a subsequent limitation on its original appropriation.”  Wolfe v State, 22 NY2d 292, 297 [1968].

Posted in Condemnation, Easements, Loss of Access, Partial Takings
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