Another short one from New York’s Appellate Division (Second Department). In In re Village of Port Chester, No. D34768 (May 1, 2012), the court held that several parcels of land the Village condemned should be treated as a single unit for valuation purposes, and that “unity of use” was established by the property owners because they showed they acquired the parcels in order to put them together to build a CVS store.
The claimants also established unity of use. The record contains testimony as to the claimants’ intention and efforts to acquire the properties as an assemblage for the development of large retail establishment before they had knowledge of a possible condemnation. The record also contains an executed lease (hereinafter the subject lease) between the claimants and Port Chester CVS, LLC (hereinafter CVS), pursuant to which CVS was to construct a new CVS pharmacy (hereinafter the CVS project). Additionally, the record contains a Village of Port Chester Planning Commission resolution granting final site plan approval for the CVS project. While the subject lease was executed after the Village commenced this condemnation proceeding, the record contains evidence that the lease was a culmination of ongoing negotiations that began well before the Village commenced this proceeding.
Slip op. at 2. If this case sounds familiar, it is. This is the case where the Village took the property and prevented the property owners’ plans for CVS store so another priviate developer could put in a Walgreens. The owners’ public use challenge failed, and the valuation phase followed. More background here (Eminent Domain Blog) and here.
The opinion’s last paragraph also offers us this tantalizing tidbit:
Finally, under the circumstances of this case, the Supreme Court providently exercised its broad discretion in granting the claimants’ request to impose sanctions for the spoliation of evidence to the extent of according an adverse inference with respect to the destruction of the draft appraisal reports prepared by the Village’s appraiser (see generally Madkins v State of New York, 82 AD3d 1174, 1174-1175; Shayovich v 800 Ocean Parkway Apt. Corp., 77 AD3d 814, 815; Gotto v Eusebe-Carter, 69 AD3d 566, 567-568).
Slip op. at 3. Draft appraisal report “destroyed?” A claimed mistake? How did that come to light? We wish the usual cryptic opinion from the Appellate Division would tell us more. We also note that our Owners’ Counsel of America colleague Michael Rikon represents the property owners.