Eminent Domain FAQ

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Eminent Domain FAQs about Eminent Domain Condemnation Law.

Can your client recover severance damage for the loss of frontage area?

Most takings are partial takings. The most common taking involves a road widening resulting in a loss of frontage area which, in turn, results in the loss of display or front parking area. This damage is compensable.

The frontage area represents the most economically important area of the property. This is especially so on Long Island and even more so in Suffolk County where the typical retail or commercial property consists of parcels with much of the parking and often product display in the front area. From the viewpoint of the tenants, the front does the selling, offering to the passing traffic the availability of the product and convenient parking.

The courts have recognized that the area in front of the property which is used as a display or front parking has a value unique to the overall utility of the property. Where, by reason of the taking, that area is impaired, it gives rise to a compensable severance damage.

In Enmac Realty Corp. v. State of New York, 38 A.D.2d 650, 327 N.Y.S.2d 213 (3rd Dept. 1971), the appellate court described the taking and the lower court=s approach:

A... The area of appropriation involves a 43-foot strip along the entire frontage on Broadway, plus a small triangular piece extending along Farm Lane. The taking eliminated the parking display area in front of the building and also resulted in making the property a nonconforming use under the existing zoning by reducing the front setback. The [lower] court found the property's highest and best use before the taking was an auto showroom and sales room and after the taking, a less desirable commercial use because of the loss of the front display space....

....

... The State took the entire frontage on Broadway up to a depth of about 44 feet in fee and also acquired a permanent easement immediately behind the fee taking, v[a]rying to a further depth of five to ten feet...

The Court of Claims granted substantial severance damage.On appeal, the Appellate Division recognized that finding severance damage was appropriate. The Court, however, reversed on the grounds that the claimant had used an improper averaging method to arrive at the damages and that the State, having failed to recognize any severance damage whatsoever, deprived the trial Court of evidence to support any range in value.

The Appellate Division remanded the matter for the purpose of quantifying the damage.

Likewise, in Ross v. State, 89 A.D.2d 709, 453 N.Y.S.2d 834 (3d Dept. 1982), the property had a number of possible commercial uses (grocery, bar). The Court found the distinction between front parking and a display is not that significant. Both play an important role in the utility and value of property.Front space enhances and broadens the potential and intensity of the use. This was recognized by the Court in Long Island Pine Barrens Water Corp. v. State, 144 Misc.2d 665, 544 N.Y.S.2d 939 (N.Y. Ct. of Cl., 1989), which involved a convenience store and delicatessen which, prior to the taking, had ample front parking spaces to accommodate its customers. After the taking, its front parking spaces were reduced by a third.