I recently tried a claim which involved the taking of an easement on a beach front property. The taking was to build a protective dune on Fire Island.
The dune was part of a federally funded program developed after Hurricane Sandy. The County claimed that the dune was a special benefit to the property. Let’s define the terms:
Nichols on Eminent Domain, Third Ed., Sec. 8A.04(2) provides, “General benefits are those benefits which result from the fulfilment of the public project which necessitated the taking and are common to all lands in the vicinity of the condemnee’s property. They are those benefits which accrue to the owners of property within the usable range of the public work.
Special benefits are those that arise from the peculiar relation of the land in question to the public improvement.”
The takings on Fire Island were the result of a federal study which followed Hurricane Sandy.
The study, Inlet Stabilization Fire Island Inlet to Moriches Project Report, US Army Corps of Engineers, June 2014, stated the dune was to protect Fire Island and, in addition, the back-bay area of the South Shore opposite Fire Island. (Ibid. 1.2.2). It was established that there were more than 9,000 buildings on the South Shore and over 5,000 buildings on Fire Island.
The easement taken for the dune precludes any further use or access to the beach. So how is this a benefit to the homes? Not only is it an impediment, but it actually is lower to the pre-existing dune.
The County’s appraiser calculated the alleged benefit by dividing the entire cost of the project by the number of homes which were beach front. The County divided the $133,336,000 cost by only the frontage homes. Yet, the US Army Corps of Engineers states that all of the Fire Island homes (5,094) will benefit as well as over 9,000 main land homes. So, it should be clear, the calculation of the alleged cost offset was widely inaccurate. More importantly, if 14,094 homes benefit, how could that be a special benefit?
Here is the outrageous thing. The federal government paid 100% of the cost. The County paid nada. Yet, here they are stealing just compensation guaranteed by the United States and New York State Constitution by offsetting severance damages.
I believe that many homeowners on Fire Island did not file claims and merely accepted Suffolk County’s offer as compensation in full. There should be a federal investigation of what the County did or attempted to do.