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UNITED STATES v. 122 ACRES

November 17, 1943

UNITED STATES
v.
122 ACRES OF LAND IN TOWN OF HEMPSTEAD, NASSAU COUNTY, N.Y., et al.; SAME v. 40 ACRES OF LAND IN TOWN OF HEMPSTEAD, NASSAU COUNTY, N.Y., et al.



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

The proceedings under the above titles concern the taking of property by the government in connection with Mitchell Field in Nassau County somewhat east of Hempstead.

Miscellaneous No. 687 was settled after being called for trial.

 I have visited and inspected these several properties since the testimony was closed.

 The first named cause involves two damage parcels: "B, containing 8 acres, and A, containing 120 acres. These were part of the original Santini holdings comprising about 260 acres lying generally at Front Street and Merrick Avenue, on the south, the easterly side extending along Merrick Avenue northerly to Bethpage Turnpike which seems also to be known as Fulton Avenue, which latter highway constituted the northern boundary of the property. It was formerly part of the Cold Stream Golf Club, which means that it contained but few buildings.

 The government took possession of these damage parcels under an order dated May 14, 1942, and the Declarations of Taking were filed on December 19 and 28, 1942, as of which it is the duty of the court to ascertain the fair value of the properties so acquired.

 In the northerly section of the original 260 acres, an irregular shaped parcel comprising 76 acres was acquired by the government through purchase, and that parcel having a frontage on Bethpage Turnpike juts into damage parcel A for about two-thirds of its width, in such a way as to leave a shallow frontage for a portion thereof, fronting on Bethpage Turnpike, according to the following diagram made from an exhibit:

 [See Illustration in Original]

 The dotted line areas added to damage parcels A and B indicate the original Santini tract. That portion marked "H. 40 acres" shows the parcel embraced in Miscellaneous No. 687 settled as above stated.

 Damage parcel B is a portion of a 26.9 acres purchase in 1938 from Santini, consisting of B as shown, and the adjacent 18.9 acres which were acquired by Delano Park Inc. for residential development. Much of the 18.9 acres was so improved, by the erection of 47 dwelling houses which sold at various prices up to $6400 during the years 1939 and 1940.

 No buildings were ever erected on damage parcel B, however; that is to say, the development came to a halt at the end of 1940. The president of Delano Park Inc. died during the early part of that year, but what influence that event had upon the operations of the company has not been made to appear.

 It should be stated that damage parcel B comprises 43 building lots according to a Map of Delano Park Homes, owned by Delano Park Homes Inc.; and 1 plot and 8 irregular narrow strips on the north and east boundaries of this damage parcel were owned by Delano Park Inc., which explains that there are two claimants to this parcel, but not why.

 The property looks more pretentious on the Map than inspection reveals it to be. The subdivision into lots facing upon paper streets affords a convenient platform upon which to erect appraisals of corner lots, etc., but at the time of the order of possession the streets had not been physically established except as to one running east and west at the southerly end of the damage parcel. That had been opened, but not surfaced, and water pipes had been laid, and one hydrant erected, but otherwise the property actually was in acreage. The roadway mentioned is a convenience to the houses facing it on the improved portion of the 18.9 acres not here involved, but does not change the character of property lying to the north of it, with which this proceeding is concerned.

 Not only had there been no development of damage parcel B at the time of possession or taking, but from and after March, 1942, according to the testimony, building materials were not available for the erection of houses except under the grant of priority for defense housing, by the appropriate agencies of the federal government.

 No such priorities had been granted, and it is revealed in the testimony that F.H.A. loans could not be secured, because of the direct proximity of the property to a flying field, which is what Mitchell Field is.

 The question arises as to whether the impossibility of applying this property to its best use, by reason of the non-availability of building materials under the priority restrictions, can be considered by the court in seeking to arrive at its fair market value.

 Since the same subject is presented in connection with damage parcel A, brief discussion ...


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