COUNSEL:

Joseph Lite, West Islip, for claimants.

Louis J. Lefkowitz, Atty. Gen. by Robert Schwartz, Asst. Atty. Gen., for the State.

FRANK S. ROSSETTI, Judge.

The two claims here arise from the partial appropriations of airspace above land owned by each of the named claimants, pursuant to section 1267-a of the Public Authorities Law and section 30 of the Highway Law, under maps entitled Avigation Easement, Development of Republic Airport and Republic Transportation Center, Farmingdale, Long Island-Town of Babylon, County of Suffolk, State of New York, for use of Metropolitan Transportation Authority. The map in the Kupster claim (Cl. No. 58566) was designated Claim Map No. 319 and the map in the Schettini claim (Cl. No. 58572) was designated Claim Map No. 308, both maps being described as a portion of Appropriation Map No. 300R-1.

The two appropriations here were of permanent easements for avigation purposes of the airspace over all of the respective subject properties' land areas. Basically, the taking maps defined planes above the properties and the said easements encompassed the airspace above the planes. These individual planes were part of a larger, general avigation easement plane rising upward and outward from Republic's runway 14 at an angle of one foot up (vertical) for every 50 feet out (horizontal). This general plane started at ground level from a beginning line perpendicular to runway 14's centerline and 850 ft. back (southeast) from the runway's northwest end. It extended out and up at the said angle (50:1) and ended at an ending line 50 feet above the ground and 2,500 feet out, horizontally, from the beginning line. It was centered on the runway centerline and the prolongation thereof and was trapezoidal in shape, being 1,000 feet wide at the ground level beginning line and 1,700 feet wide at the 50 foot high ending line. Apparently, this general plane was for a runway clear zone required for federal funding of airport improvements. (See 14 CFR Part 152, 152.1, 152.9, 152.11, 152.29, 152.41, 152.45(c)(14), 152.47(a)(5), 152.67, 152.85, 152.107(a), App. A, subd. 2 (a).)

The individual easement taken above the Kupster property (Claim Map No. 319) ranged from 37 feet above the property's southeast corner to 42.7 feet above its northwest corner. [FN 1] The easement cleared the Kupster building by about 20 to 231/2 feet. The only object protruding through the easement plane was the 47 foot oak tree. It extended about 7 feet above said plane.

[FN 1] The Kupster taking map records the easement elevation at the property's southwest corner to be 132 ft. above sea level or about 51 ft. above ground level. This is apparently a typographical error since the 132 foot figure is significantly different from the other easement elevations shown and inconsistent with the 50:1 general easement plane (as noted above, this general plane is only 50 ft. above ground at its highest point, along the plane's ending line, which is almost 250 ft. beyond the Kupster property). The Court believes the proper elevation should be 122 ft. above sea level. We note we do not believe this error so tainted the instant proceedings that a different ultimate finding would result upon its correction. Both appraisers used appropriate heights (Kupster's appraisal mentioned the 132 foot figure but concluded the easement height was 37 ft.; defendant's appraiser did not refer to said figure and used heights of 40 and 41 ft.) and although claimant's noise expert testified to an easement height of 52 ft., it seems very possible this error was not incorporated in his key calculations, the NEF contours. Further, even if it was, the subject 10 foot error probably had only a de minimis effect on said calculations and/or his and claimant's appraiser's conclusions. Finally, even if it did have some significant effect, we do not believe any change in this part of Kupster's case could correct the basic failures of proof herein or change the result. Accordingly, we do not consider it necessary to reopen the trial with respect to this error. Nevertheless, we believe the State, in the interests of accuracy and to avoid possible future misunderstanding, should file an amended map correcting the error.

[FN 2] The easement heights hereinabove were derived by the Court from its approximations taken from the appropriation maps.

The State found the takings had no effect on the properties' market values. Chief among its reasons for finding no consequential damages were: (a) Federal Aviation Administration regulations had previously restricted the use of or taken the airspace above the properties down to heights lower than those taken by the easements; and (b) any increase in noise resulted from increases in air traffic, particularly jet traffic, and not from the imposition of the easements. Defendant's appraiser thus found the properties' values and highest and best uses unchanged (he found such uses for both properties to be any light industrial or commercial use in accordance with the zoning, including the present uses).

An important preliminary is the delineation of the nature of the subject easements. Certainly the State cannot be accused of being unduly prolix in the easements' descriptions. Nonetheless, we think the scope of the easements is clear. Each map is entitled "Avigation Easement" and describes the permanent easements taken as "for Avigation Purposes", without any exception or limitation. Also, each claimant is described as "Former Reputed Owner of Avigation Rights." Avigation is defined as navigation of aircraft. Webster's 3rd New Int. Dictionary (1976 unabr. ed.), p. 151.) Therefore, although the only precatory language in the taking maps pertains to objects extending above the easements' planes, we believe the subject easements must be considered full ones for general avigation purposes and not merely obstruction clearance easements. (See U.S. v. Brondum, 5 Cir., 272 F.2d 642, 644-645; Greater Baton Rouge Airport Dist. v. Hays, 339 So.2d 431, 434-435 (La.App.).) Under familiar eminent domain principles, the State's taking is deemed to encompass all that it has a right to do under the terms of the easement. (See Wolfe v. State, 22 N.Y.2d 292, 295, 292 N.Y.S.2d 635, 637, 239 N.E.2d 517, 519; Morton v. State, 8 A.D.2d 49, 52, 185 N.Y.S.2d 321, 324; Spinner v. State, 4 A.D.2d 987, 988, 167 N.Y.S.2d 731, 732.) Both parties proceeded herein on the basis that the easements taken were full avigation ones (if they were merely obstruction clearance easements, all the reports and testimony on noise damage would have been immaterial and unnecessary). Accordingly, the Court so finds.

A second preliminary, and one which eliminates one of the State's principal reasons for finding no consequential damages, concerns the F.A.A. regulations applicable to the subject properties. These regulations concern objects affecting navigable airspace. (14 CFR Part 77.) They were promulgated on May 1, 1965, pursuant to provisions of the F.A.A. Act of 1958 (U.S.Code, tit. 49, ch. 20, particularly ss. 1348, 1501), and became applicable to Republic Airport when it became an "(a)irport available for public use" (see 14 CFR 77.2, 77.13(a)(2)(i), (a)(5)(i), 77.21(c)(1)). Republic became such in 1969 at the latest. [FN 3]

[FN 3] Republic Airport was originally a private airport owned and operated by Republic Aviation Industries, in connection with its manufacture of aircraft. In 1965 Republic Aviation sold the airport to Farmingdale Company, a corporation apparently controlled by Fairchild, another aircraft manufacturer. The State's appraiser stated Fairchild operated the airport as a public one, but it was unclear whether this occurred immediately on Fairchild's acquisition of it in 1965. Also, it is not even certain his description of Republic as public meant the same as the regulations' definition of "available for public use." In any event, it is clear Republic became the latter when it was taken over by the State on behalf of the Metropolitan Transit Authority for use as a general aviation airport on March 31, 1969.

[FN 4] We note defendant's experts apparently failed to utilize the proper figures in determining the appropriate approach surface herein. They considered the approach surface to be a plane having a 40:1 slope and extending from the end of runway 14. The regulations apparently applicable to that runway indicate a plane with a 34:1 or 50:1 slope, extending from 200 ft. beyond the end of the runway. (See 14 CFR 77.25(d)(1)(iv), (v) or (vi), (d)(2) (ii) or (iii).) Since the specific authority for defendant's figures was not adequately explained in the State's reports or at trial, the Court was not able to determine if other factors or regulations supported its figures. However, as found hereafter, the relevancy and materiality of the appropriate surface, and its underlying regulations, to the subject properties' market value was not evidentially demonstrated. Thus the problem noted herein is moot.

[FN 5] The Court could likewise not find any such provisions in other federal statutes or regulations.

[FN 6] The general avigation easement plane herein apparently coincides with such a zone (see p. 228, supra).

Proceeding to the central concern in this case, the consequential damages [FN 7] resulting from the takings, we note that to the Court's knowledge, this is the first New York case evaluating formal de jure appropriations of avigation easements. Other New York cases have considered avigation easements, but only in the context of inverse condemnation suits (see Cunliffe v. County of Monroe, 63 Misc.2d 62, 64, 312 N.Y.S.2d 879, 882). Most of the general law concerning such easements has evolved from inverse condemnation cases and although such suits are analogous to the instant proceedings, there are significant differences between them. For example, inverse condemnation requires a showing of substantial damage from overflights before a taking will be found. (See U.S. v. Causby, 328 U.S. 256, 265-267, 66 S.Ct. 1062, 90 L.Ed. 1206.) In a de jure appropriation, the fact of the taking is generally undisputed and the legally compensable damages resulting therefrom, in whatever amount, are recoverable. It has also been opined that inverse condemnation, as a legal theory and basis for the recovery of de facto overflight noise damage, has effectively absorbed other legal doctrines applicable to such damage, to wit, trespass and nuisance. (See 39 J. of Air L. 81, 83.) Thus, in resolving the various issues at bar, rules evolved from inverse condemnation cases, as well as from normal appropriation cases, have been applied only to the extent they accord with fundamental principles of eminent domain, giving appropriate consideration to the atypical aspects of avigation easements.

[FN 7] The only property directly taken was the top 7 ft. of the tree in the northeast corner of the Kupster lot. However, Kupster claimed no damages therefor and defendant's appraiser found such taking had no effect on the market value of the Kupster property. Accordingly, there is no basis for any award of direct damages herein.

Considering the height restriction damages initially, we believe such restrictions are sufficiently comparable to similar zoning restrictions that the effect of the easements' height restriction on market value can be assumed. (See, generally, 4 Nichols on Eminent Domain, s. 12.322.) Thus there is no per se legal impediment to damages arising therefrom, but of course the existence, as well as the amount, of such damages must be shown by legally sufficient proof. Such was patently absent here.

First, while claimants' basic contention concerning these restrictions was they would prevent any post-taking vertical expansion of claimants' existing buildings, neither claimant demonstrated that a second story could not be built under the respective easements. The Kupster easement cleared the top of the building there by 20 to 231/2 feet and the building's first story was only 18 feet high. Nothing was shown to indicate a second story would require more than that clearance. The Schettini restaurant had less clearance (181/2 to 191/2 ft. above the building) and the first story was somewhat higher (approximately 20 ft.). Nonetheless, there was again no proof that a second story could not be built within this clearance. [FN 8]

[FN 8] The easement over the Schettini property cleared the air conditioning units on the restaurant's roof by only 14 ft., but such units were not shown to have been in existence at the time of vesting (the part of the roof they were on was that of the addition completed after the taking). In any event, there was nothing to indicate these units could not be utilized without having them extend beyond the roof or above the easement plane.

Second, it was not shown there was sufficient market demand in this area for commercial-industrial or restaurant properties to justify the expense of vertical as opposed to horizontal expansion. Defendant's appraiser indicated that buildings in the area were predominantly one story and that the few two story buildings were no more than 30 to 32 feet in height. Claimants' proof failed to show a shortage of comparable buildings or other factors that would make it economically reasonable to expand the subject properties by putting on a presumably more expensive second or third story rather than by merely adding a horizontal addition. In fact, it was not shown that any expansion was economically reasonable (with respect to the Schettini property, see "Fourth" par, infra ).

Third, claimants failed to show that a second story would not be proscribed by the zoning requirements relative to on-site parking. Kupster had approximately 28,000 s.f. available for parking and, of this, about 22,000 s.f. was allocable to the existing building. Thus a second story of only about 6,000 s.f. would be permissible. As to Schettini's restaurant the existing seating capacity (including the addition, but not the bar-lounge) was a minimum of 475 people. Hence, 67 parking spaces were required. Defendant's appraiser opined that 50 spaces could be provided through the use of attendant parking and arguably such a procedure could also supply the additional 17 spaces required. However, claimant Schettini presented nothing to indicate that other parking could be provided to permit any further expansion.

Fourth, claimants presented absolutely no evidence of any plans for future expansion, vertical or otherwise. In fact, as of vesting Mr. Schettini was in the course of completing an addition which more than doubled his restaurant's capacity and usable area. He gave no indication he had further plans to expand. The Court thus considers any expansion plans to be at best only a gleam in claimants' appraiser's eye. As such, they were speculative and non-factual and any putative damages therefrom are impermissible. (See Oneonta Center Assocs. v. State, 54 A.D.2d 993, 388 N.Y.S.2d 57.)

Finally, even if plans for expansion did exist, damages therefor could not be awarded under the familiar rule that damages for frustration of business plans are not compensable. (See Specialty Foods Corp. v. State, 46 A.D.2d 989, 362 N.Y.S.2d 266; Frontier Town Props. v. State, 36 A.D.2d 148, 155, 319 N.Y.S.2d 3, 9, affd. 30 N.Y.2d 892, 335 N.Y.S.2d 439, 286 N.E.2d 923.) On all the foregoing, the Court finds claimants have failed to prove their entitlement to consequential damages due to the easements' height restrictions.

The second claimed element of consequential damages, noise damages, was the pre-eminent issue in these cases and again we could find no legal authority for barring such damages per se. In highway appropriations, it is unclear whether noise damages are allowable as a discrete element of consequential damages, but it is clear they may be considered in conjunction with other damages. (See City of Yonkers v. State, 40 N.Y.2d 408, 412-413, 386 N.Y.S.2d 865, 868-869, 353 N.E.2d 829, 831-833; Dennison v. State, 22 N.Y.2d 409, 293 N.Y.S.2d 68, 239 N.E.2d 708). More pertinent to aircraft noise are cases involving railroad appropriations where noise damages have been allowed as a matter of course. (See, generally, 4A Nichols on Eminent Domain, s. 14.2462, pp. 14-267 through 14-270, & vol. 5, s. 16.102, pp. 16-68, 16-69.) This Court would be ignoring common experience if it failed to note there is a quantum difference between highway and train noise and a further such difference between train and aircraft noise. Thus the compensability of consequential aircraft noise damages would seem to follow a fortiori from the compensability of train noise damages. It has been judicially held that noise from aircraft overflights can have substantial, measurable effects on market value (see, e.g., Klein v. U. S., 7 Av. Cas. 17,186, 17,187) and the State here has made no argument for the barring of damages from such noise as a matter of law. We therefore find that it is legally permissible to allow consequential damages due to aircraft overflight noise in a de jure avigation appropriation proceeding.

In making this finding, we have considered and rejected defendant's remaining chief argument against allowing consequential noise damages, to wit, such damages, if any, arose not from the easements, but from an increase in aircraft traffic in general and jets in particular. This argument, while facially appealing, overlooks the nature of the easements herein and the State's liability arising therefrom.

As observed, the State, as owner and operator of Republic Airport, is liable for noise damages from aircraft overflights to and from the airport (see Griggs v. County of Allegheny, 369 U.S. 84, 89-90, 82 S.Ct. 531, 7 L.Ed.2d 585, supra). Put another way, prior to the imposition of the subject easements, the State had the right to fly aircraft over claimants' properties (within the federally defined navigable airspace see U.S.Code, tit. 49, s. 1304), but this right to fly over did not include the right to make damage-causing noise without liability, even though such noise was incidental and necessary to such flights. This latter liability was enforceable in an inverse condemnation suit where, if proper noise damages were shown, a taking would be found, with the State being deemed to have appropriated an avigation easement by and for aircraft overflights. [FN 9] In judicially enforcing claimants' constitutional rights to just compensation, the Courts would be requiring the State to pay for this right to make noise.

[FN 9] We note that if claimants had sustained demonstrable noise damage before the taking and could show this damage was properly related to the instant takings, conceivably they could have proceeded herein (rather than or in addition to a separate inverse condemnation action) on the basis of a de facto taking arising at the time of such pre-taking damage. The date of vesting herein would then be advanced from the de jure date to the de facto date. However, claimants' proof indicates there was no pre-taking noise damage, they made no claim therefor and, further, in response to the Court's questions, their attorney expressly represented that they were not proceeding on any de facto theory.