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March 30, 1962

UNITED STATES of America, Petitioner-Plaintiff,

The opinion of the court was delivered by: BRUCHHAUSEN

This action was tried before the Court, without a jury. Exercising its power of eminent domain, commonly termed condemnation, the petitioner, the Government, has taken title to a number of parcels of real property. The contestants, the owners have presented proof and the Court's function is to determine and fix the market value of the parcels at or about the time of the taking, based upon the evidence presented and the applicable rules of law.

The date of the taking and the date of evaluation is November 10, 1959.

 The subject property is located in western Suffolk County in the State of New York, distant approximately sixty-five miles east of New York City. Most of it lies in the Town of Riverhead and the balance in the Town of Brookhaven.

 The original taking comprised 1,108 acres of land. Prior to or during the trial, the owners of approximately 75% Of the land taken entered into stipulations with the Government for the settlement of their claims. Nine claimants, owners of approximately 185 acres of the land taken, submitted proof at the trial in support of their claims. The owners of some twenty-five parcels, comprising approximately ninety-two acres failed to appear at the trial and offered no proof in support of their claims.

 In a prior condemnation action (C.P. 84) in the years 1952 and 1953, the Government acquired 4500 acres of land for development and use by Gruman Aircraft Corporation in assembling and testing of aircraft. The present action involves an expansion or extension of the aforesaid prior acquisition.


 (a) The burden of establishing the value rests on the owner. United States ex rel. and for Use of Tennessee Valley Authority v. Powelson, 319 U.S. 266, 273, 63 S. Ct. 1047, 87 L. Ed. 1390; Westchester County Park Commission v. United States, 2 Cir., 143 F.2d 688, certiorari denied 323 U.S. 726, 65 S. Ct. 59, 89 L. Ed. 583.

 (b) Fair market value, more profitable uses and the effect of zoning restrictions.

 'Just compensation compatible with the requirements of the Fifth Amendment is the fair market value of the condemned property just prior to the taking.' United States v. Meadow Brook Club, 2 Cir., 259 F.2d 41, certiorari denied 358 U.S. 921, 79 S. Ct. 290, 3 L. Ed. 2d Fair market value is 'what a willing buyer would pay in cash to a willing seller.' Baetjer v. United States, 1 Cir., 143 F.2d 391, certiorari denied 323 U.S. 772, 65 S. Ct. 131, 89 L. Ed. 618.

 'This evaluation (of fair market value) should reflect no only the purpose for which the property has theretofore been used, but other uses which might render if more profitable. * * * It would be improper to value the property as if it were actually being used for the more valuable purpose. But the 'extent that the prospect of demand for such use affects the market value while the property is privately held' should enter into the calculation. * * * Obviously the more profitable operation must be one allowed by law to be carried out on the premises. Thus if existing zoning restrictions preclude a more profitable use, ordinarily such use should not be considered in the evaluation.' United States v. The Meadow Brook Club, supra.

 (c) Sales at arm's length of similar property are best evidence of market value. In the absence of such evidence a determination of value becomes at best only a guess by informed persons. There is no absolute rule which precludes consideration of subsequent sales. The general rule is that evidence of similar sales in the vicinity made at or about the same time is to be the basis for the valuation and evidence of such sales should generally be admissible. Baetjer v. United States, supra; United States v. 63.04 Acres of Land, 2 Cir., 245 F.2d 140.

 (d) Opinion evidence.

 'Opinion evidence * * *, its weight depending on its origin and the extent to which it is supported by facts. Standing alone, it is inconclusive and often tainted.' Welch v. Tennessee Valley Authority, 6 Cir., 108 F.2d 95, certiorari denied 309 U.S. 688, 60 S. Ct. 889, 84 L. Ed. 1030. To same effect, State of Washington, v. United States, 9 Cir., 214 F.2d 33, certiorari denied 348 U.S. 862, 75 S. Ct. 86, 99 L. Ed. 679.

 'Opinion evidence is not evidence of fact. The trier of fact is not bound to follow the expert.' United States v. Honolulu Plantation Co., 9 Cir., 182 F.2d 172, certiorari denied 340 U.S. 820, 71 S. Ct. 51, 95 L. Ed. 602.

 It is therefore clear that the owners have the burden of supporting their claims with proof that their valuations are fair market value. In establishing values, they are not limited to the consideration of present uses, but may include such other uses as are more profitable, provided there is a demand therefore and they are allowed by law.

 The claimants' proof falls within two categories, industrial use and residential use.

 Such evidence as was offered on the theory of industrial usage must be disregarded. Present zoning regulations prohibit such use and no market or demand was shown to justify the probability of a change in zoning to permit such use. Furthermore, no applications have been filed for amendment of the law to include such uses. The zoning regulation permits farming and residential subdivision, with a minimum area of 8400 square feet per plot and a width of not less than 70 feet.

 Unless a substantial market existed for homesites, and the overwhelming proof is that there was no such market at the date of taking, valuations based upon subdivision of the parcels into plots for homeseekers, is lacking in foundation. This was not a residential area. During the course of many years, prospective developers have prepared and filed maps and endeavored to interest purchasers in acquiring plots.

 Such activity has largely been confined to paper subdivisions. It is true that a few dwellings have been erected but by and large the ventures were unsuccessful. The only recent filing was the Peters Map in 1953. This was an unsuccessful venture. Sales reached their peak in 1955 and 1956. The subject area has remained practically dormant for many years, excepting for the plant constructed for the Gruman Aircraft Corporation by the Government. ...

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