Opinion
October 24, 1967
Appeal by claimant utility from a judgment of the Court of Claims which awarded $500 for the appropriation for highway purposes of a permanent easement for a subsurface drainage line, in a strip of land approximately 25 feet in width extending about 220 feet across the southerly portion of claimant's property, the land being used for purposes of an electric distribution substation, in a zoned residential area in East Levittown, Nassau County. The substation structure was erected pursuant to a permit for such use in a residential zone, granted by the zoning board of appeals upon condition that the utility maintain a buffer strip 100 feet wide, with extensive landscaping, including the planting and maintenance of trees and shrubs, to screen the substation facility from the nearby residences. The easement strip extended across the larger buffer strip; and, in the course of the State's construction, many trees and shrubs growing upon it were destroyed; and claimant promptly replaced them in compliance with the provisions of the special use permit. We are satisfied that the highest and best use of claimant's property was that to which it was in fact devoted, that is, for its mandated maintenance as a buffer strip planted so as to screen the substation facility from neighboring residences; that any failure thus to maintain the strip would constitute a violation of the special use permit pursuant to which the facility was erected and maintained; and that, in view of the municipality's requirement of such continued maintenance, the land could not be evaluated on the basis of a potential market for future development as three residential building lots occupying the entire width and depth of the buffer strip, as contemplated by claimant's expert. After properly rejecting claimant's theory in this respect and correctly holding that the use to which the buffer strip was actually devoted was the most advantageous use, the trial court fell into error in awarding what it termed "nominal damages" only; thus giving no effect whatsoever to the proffered evidence of cost or replacement cost of the trees and shrubbery; and thereby ignoring the long-established rules governing the evaluation of specialty property, which the court itself, whether explicitly or by implication, had correctly found this public service corporation property to be. The factors requisite to the evaluation of the buffer strip according to its special use are clearly shown in this record. (See Albany Country Club v. State of New York, 19 A.D.2d 199, affd. 13 N.Y.2d 1085; 4 Nichols, Eminent Domain [3d ed.], §§ 12.22, 12.32.) The court improperly excluded claimant's tendered proof of the $4,912 actual replacement cost of the trees and shrubs destroyed, which should have been given consideration as a factor reflecting the enhancement of the land value for claimant's special (and mandated) use. The court then received proof of the value of the individual plants destroyed, taken from claimant's inventory, and proven, item by item, to an aggregate of $6,470. We construe claimant's reply brief as asserting no more than $4,912 enhancement value. The State, relying on a theory that only nominal damage was incurred, put in no proof, resting at the close of the claimant's case. Of necessity, therefore, we rely upon claimant's uncontradicted proof. It is clear, in any event, however, that the enhancement in the value of the land attributable to the older, well-established trees and shrubs, installed about five years before the taking, would not, at the time of such taking, be less than the cost of their replacement. (Cf. Albany Country Club v. State of New York, supra, p. 201.) Indeed, under the peculiar circumstance of claimant's continuing obligation to maintain plantings forming a natural screen, the value for purposes of claimant's special use would seem always to be no less than the cost of replacement upon loss or destruction, whether as the result of an appropriation or by reason of natural or other causes. We find that by the State's appropriation of the easement, claimant was damaged in the amount of $5,400. Judgment modified, on the law and the facts, so as to increase the amount of the award to $5,400 and appropriate interest, and, as so modified, affirmed, with costs to appellant. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gibson, P.J.