Speculative nature of proposed use in condemnation action.

Author:Blair, Benjamin A.

In the early 1980s, a 7-acre plot of land on Staten Island was donated by separate donors for the purposes of constructing a religious school (School). In 1985, the property was mapped as a wetland by the New York State Department of Environmental Conservation (DEC). The School sought to procure a substitute property but was unable to do so because of rising property costs and the lack of a suitable location. The School applied for a hardship exemption from the wetlands designation, which was granted in 1991.

In granting the exemption, the Freshwater Wetlands Appeal Board (FWAB) noted that the School had consulted with an architect on the use of the space, including plans for a 53,000-square foot facility consisting of classrooms, a synagogue, a playground, and lecture space, plus additional space of an unspecified size for student and faculty housing. The FWAB removed any implied restriction limiting the development to 53,000 square feet, but development did not proceed, and the School did not file applications for development.

In 2005, the City of New York (City) applied for site selection and acquisition of the property for condemnation, and it began condemnation proceedings in 2009. At trial, the School presented revised plans for development, including additional housing, and the court found that the value of the property was $10,100,000 and awarded the School that full amount. The City appealed.

The measure of damages in condemnation is the fair market value of the condemned property in its highest and best use. A determination of highest and best use must be based on evidence of a use that reasonably could or would be made of the property in the near future.

As evidence of highest and best use, the School presented evidence of specific plans for the property. In contrast to the plans considered by the FWAB in 1991, the plans presented to the court consisted of four...

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