Eminent Domain

Court of Claims Erred in Setting Valuation Date

Friedenburg v. State of New York

NYLJ 6/30/08, p. 35, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In an action for damages pursuant to article 5 of the Eminent Domain Procedure Law (EDPL), landowner appealed from a determination by the Court of Claims granting summary judgment to the state and fixing 1995 as the valuation date for the subject property. The Appellate Division reversed, setting 2005 as the valuation date because title did not vest in the condemnor until that date.

Landowner's predecessor purchased the subject waterfront property in 1962, at a time when the property was not subject to any environmental regulations. In 1973, the state legislature enacted the Tidal Wetlands Act, and the State Department on Environmental Conservation (DEC) subsequently determined that almost all of the subject parcel should be designated as tidal wetlands. In 1987, current landowner (executor of the original landowner's estate) applied for a tidal wetlands permit to build a single-family house on the property, and the DEC denied the permit application in 1995. Landowner then brought a proceeding, pursuant to the Environmental Conservation Law, seeking to annul the denial and to direct the DEC to issue the permit or, in the alternative, for a declaration that denial of the permit should be regarded as the equivalent of a taking without just compensation. In 2001, the Supreme Court determined that the denial was the equivalent of a taking, and directed the DEC to issue the permit or acquire the property. The DEC ultimately acquired title in 2005 by the filing of an acquisition map in the office of the Suffolk County clerk. In 2006, landowner sought compensation, and sought to fix the valuation date in 2005, when the state filed its acquisition map. The Court of Claims, however, agreed with the state that the valuation date should be set in 1995, when the permit application was denied. Landowner appealed.

In reversing, the Appellate Division held that the judgment that the permit denial was the equivalent of a taking merely triggered the DEC's right to acquire the property by eminent domain. Although in that proceeding, the court admitted testimony about the value of the property in 1995, that testimony was admitted only to establish that the permit denial constituted the equivalent of a taking, not to establish valuation for eminent domain purposes. Because in this case the title did not vest in the state until 2005, landowner's summary judgment motion should have been granted, and the valuation should have been determined as of 2005.

Court of Claims Erred in Setting Valuation Date

Friedenburg v. State of New York

NYLJ 6/30/08, p. 35, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In an action for damages pursuant to article 5 of the Eminent Domain Procedure Law (EDPL), landowner appealed from a determination by the Court of Claims granting summary judgment to the state and fixing 1995 as the valuation date for the subject property. The Appellate Division reversed, setting 2005 as the valuation date because title did not vest in the condemnor until that date.

Landowner's predecessor purchased the subject waterfront property in 1962, at a time when the property was not subject to any environmental regulations. In 1973, the state legislature enacted the Tidal Wetlands Act, and the State Department on Environmental Conservation (DEC) subsequently determined that almost all of the subject parcel should be designated as tidal wetlands. In 1987, current landowner (executor of the original landowner's estate) applied for a tidal wetlands permit to build a single-family house on the property, and the DEC denied the permit application in 1995. Landowner then brought a proceeding, pursuant to the Environmental Conservation Law, seeking to annul the denial and to direct the DEC to issue the permit or, in the alternative, for a declaration that denial of the permit should be regarded as the equivalent of a taking without just compensation. In 2001, the Supreme Court determined that the denial was the equivalent of a taking, and directed the DEC to issue the permit or acquire the property. The DEC ultimately acquired title in 2005 by the filing of an acquisition map in the office of the Suffolk County clerk. In 2006, landowner sought compensation, and sought to fix the valuation date in 2005, when the state filed its acquisition map. The Court of Claims, however, agreed with the state that the valuation date should be set in 1995, when the permit application was denied. Landowner appealed.

In reversing, the Appellate Division held that the judgment that the permit denial was the equivalent of a taking merely triggered the DEC's right to acquire the property by eminent domain. Although in that proceeding, the court admitted testimony about the value of the property in 1995, that testimony was admitted only to establish that the permit denial constituted the equivalent of a taking, not to establish valuation for eminent domain purposes. Because in this case the title did not vest in the state until 2005, landowner's summary judgment motion should have been granted, and the valuation should have been determined as of 2005.