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June 18, 1956

UNITED STATES of America, Petitioner-Plaintiff,
63.04 ACRES OF LAND, MORE OR LESS, AT LIDO BEACH, near the City of Long Beach, Town of Hempstead, County of Nassau, State of NEW YORK, and Irving A. Nemerov et al., Defendants

The opinion of the court was delivered by: BYERS

This branch of the above-entitled proceeding has to do with a parcel of unimproved land consisting of 4.56 acres originally part of a tract of 70.84 acres of tidal marsh land in Lido Beach, immediately east of Long Beach, Nassua County.

The 70.84 acre parcel was a portion of property that had been taken by the Government for war-time uses, and in July of 1954 was offered for sale by sealed bids; advertising thereof was in the metropolitan and local newspapers and 450 invitations were solicited by mail.

 Eighteen bids were received, the highest being that of the defendants in the sum of $ 753,000, or roughly $ 10,630 per acre; title passed on January 25th of 1955.

 The Government started this proceeding to acquire the acreage stated in the above caption on July 2, 1954; the complaint was amended however, on August 29, 1955, to add the 4.56 acres first above referred to; on August 30th an order was entered granting the Government possession, which means that fixing the fair value thereof on the date is the object of this branch of the case.

 The subject property lies immediately south of a Government military site used in connection with the guided missile program; the effect of the taking was to project the southerly line thereof to the extent of about 205 feet, for a distance of about 1,050 feet running easterly. This means that the 4.56 acres was carved out of the northwesterly section of the 70.84 acre tract, quite near to Blackheath Road but distant therefrom about 65 feet. It has no road frontage whatever.

 The configuration is roughly that of a trapezoid, having 1,050 feet on its northerly, and 869 feet on its southerly sides, 205 feet on the westerly side, and being irregularly diagonal for about 256 feet on the easterly boundary. Why it was not originally excluded from the sale of the 70.84 acres has not been confided to the court.

 The larger tract is said to have been part of what was once the Lido Golf Course, which probably accounts for the fact that this 4.56 acres, known as Tract A-110, is composed of 3.34 acres of dry, sandy land, and 1.22 acres is covered by a lagoon. Such an element is understandable in a golf course -- and is even commendable if of has safely carried the water hazard. The present bearing of this physical condition however is of serious consequence, when the court is requested by defendant to fix the fair value or just compensation for this damage parcel, on the theory that it should be if one has safely carried the building plots out of a total of 311, as designed to be comprehended in the original area of the 70.84 acres.

 The defendant's theory is thus: That the character of the property should not be valued at what it was on August 30, 1955 (and still is), but rather on what it could be converted into according to tentative plans which have been formulated to that end, but which on the day of taking existed only on paper.

 The analogy is not complete, but the argument is somewhat like an assertion that raw wool from the shearer should be valued in terms of a finished product that has been spun into yarn and woven into bolts of cloth ready for use in that condition.

 Manifestly the burden of persuasion, (Westchester County Park Commission v. United States, 2 Cir., 143 F.2d 688), of the validity of that theory is not inconsiderable.

 The relevant facts are not in dispute which renders it unnecessary to tabulate them as findings.

 The 70.84 acre tract had been used as part of a Naval training station and later by the Veterans' Administration as an emergency housing development. That use involved the erection of residential facilities, and the building of concrete roads and other appropriate improvements which need not be recapitulated. When the property was offered for sale in 1954 by the Government agency in charge, it was manifest that the best available use of the said 70.84 acre tract would be for residential development in keeping with adjacent properties on which there had been and were being erected high-class houses of the $ 25,000 class or more.

 A purpose to acquire this acreage for that use must be attributed to any informed purchaser and such indeed was this defendant.

 From the physical character of the property it was manifest that no such purpose could be realized unless all existing structures should be demolished, many if not all of the concrete roadways removed, and other similar measures taken to create a coherent and adaptable parcel of land, capable of ...

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