In sum, before the takings the State had the right (under the F.A.A. Act and regulations) to fly over claimants' properties, but not the right to make damage-causing noise without liability. After the takings, it had the said right to fly over (under federal law and under the easements) and also had the said right to make noise (under the easements, to the extent of the proven noise.) There can be no question aircraft noise, and any would-be market value damage resulting therefrom, are consequences of the use of the subject easements (see, generally, 4A Nichols on Eminent Domain, s. 14.244) and the legal effect of the easements is to relieve the State of present and future liability for such consequences (to the extent of the noise shown). Thus, while in one sense these consequences may be described as resulting from increased air traffic and jet usage, in a legal sense they and their post-taking liability-free status are results of the takings for which claimants are constitutionally entitled to just compensation (assuming of course that proper damages are shown to exist).

We note it appears the State did not need full avigation easements to fulfill the supposed purpose of the takings (to obtain federal funds) since the federal regulations applicable thereto indicate that only an obstruction clearance easement with right of entry was required (see p. 231, supra). Such a limited easement would not have required consideration of noise damage. Nonetheless, the subject takings must be construed according to their terms as written and the damages resulting therefrom must be evaluated on the basis of what the State actually took. The fact it may have taken more than it needed provides no basis for circumscribing the said damages. (See Wolfe v. State, 22 N.Y.2d 292, 292 N.Y.S.2d 635, 239 N.E.2d 517, supra).

It should also be pointed out that the right to make noise acquired by the State herein is a finite, specific one, comprehending no more than the noise levels shown. This is a consequence of the general rule that while eminent domain consequential damages arising from the State's use of the appropriated property will not be barred merely because of the futurity of such use (and the futurity of such damages), these damages must be reasonably probable and reasonably ascertainable. (See Manlius Center Rd. Corp. v. State, 49 A.D.2d 685, 686, 370 N.Y.S.2d 750, 752; 4A Nichols on Eminent Domain, s 14.241(3).) It would of course be improper speculation for this Court to award damages arising from noise levels beyond those occurring in the reasonably foreseeable future and which could be predicted with reasonably certainty.

We realize that this limited consideration of damages, while factually necessary and legally required, does have the effect of imposing a limit on the right to make noise acquired under the subject takings. However, we see no alternative to this judicial delimitation of these easements since their avigation aspect requires them to be treated somewhat atypically, at least with respect to noise. The recent Concorde-S.S.T. cause celebre highlights the rapid and radical changes that inhere in aircraft technology, particularly with respect to noise. This Court would be paying dangerous homage to outmoded and inapplicable rules if we ignored such changes. To construe these easements as giving the State the right to make whatever noise is necessary and incidental to overflights by whatever type of aircraft it may hereafter permit to land and take off at Republic would be giving it the right to destroy most, if not all, of the value of the subject properties. So construed, the easements would require this Court to find that almost all of the properties' market value had been appropriated and we would thus be required to make appropriate awards therefor. Neither party proceeded on this basis and we do not believe it would have been reasonable to do so. Thus while we believe avigation easements should be construed to include all the qualitative aspects of aircraft navigation (see pp. 229, 230, 234, 235, supra), we believe the nature of the use of the easements permits and requires them to be quantitatively evaluated only on a limited and defined basis. [FN 10]

[FN 10] The alternative is to find the said changes in aircraft technology, as well as other changes (such as in aircraft usage), make the ascertainment of post-taking noise levels so uncertain that damages therefrom cannot be found with the requisite legal certainty as a matter of law. On the record herein we are not prepared to make such an unprecedented determination and as a nisi prius court we do not consider it proper for us to do so.

In their noise evaluations the parties utilized what are called NEF (Noise Exposure Forecast) contours. As the Court understands them, these contours are theoretical estimates of the integrated noise resulting from a given pattern, mix and amount of aircraft overflights. They are measured in terms of the effective perceived noise levels (EPNLs) of each type of aircraft using the airport. The calculation of these contours apparently involves sorting the various types of aircraft into classes having similar noise characteristics, weighting each class according to the numbers thereof (i.e., the aircraft mix) and plotting the weighted noise levels for each class according to the landing and takeoff patterns actually used. These patterns seemingly incorporated the heights the aircraft actually passed over the subject properties when following the applicable glide angle planes, such planes apparently being correlated with and above (a) the F.A.A. obstruction clearance plane before the takings, and (b) the general avigation easement plane herein after the takings. In any case, these noise level plots for each class were corrected for night flights (the noise levels for such flights being increased to reflect the presumed higher level of annoyance resulting from noise at night) and then added logarithmically. These corrected figures were then converted to NEF values (which differ from the said corrected EPNL figures by a constant of 75, presumably to avoid confusion between the two types of noise values) and NEF contours drawn. These contours thus graphically delineate the noise levels for areas proximate to the runway approaches on the basis of average use for a given period (here, annually).

Claimants' noise expert derived what he purported to be the actual noise levels before and after the takings, while defendant's engineer found what he considered the maximum theoretical such noise levels. Claimants' NEF values were for 1972 and 1980 and defendant's for 1973 and 1979. The after taking values (for 1979 and 1980) were projected NEFs based on forecasts of the number and types of aircraft using Republic in said years. The 1972 and 1973 values were based on airport figures of actual aircraft operations. Various defects in both parties' computations made it impossible for the Court to use the final NEF values of either side as proper noise level guides.

Considering claimants' NEFs first, their expert found both subject properties to lie on the NEF 30 contour before the taking and between the NEF 30 and NEF 40 contour after the taking (i.e., as of 1980). His NEF values were overstatements of the actual noise levels at the subject properties for at least two reasons. First, claimants' expert used the total number of Republic flights even though at least 10% Thereof did not pass over the subject properties because they were to and from the other Republic runway. Second, the weighting of the NEFs for night flights did not seem proper for these commercial-industrial properties since said properties were generally not used at night. Although no specific evidence was adduced on this issue, it appeared from the existing uses of each property that the Kupster property would not be used at all at night and the Schettini restaurant would only be used for a part thereof. Claimants' expert opined the first factor would have only a marginal effect on his NEF values, but he was not questioned relative to the second factor and his computations were not demonstrated sufficiently for the Court to independently determine the effect of said factor. Other factors, mentioned in defendant's noise report and not specifically rebutted, could also have inflated claimants' before and after NEF values. Additionally, claimants' after NEF values were stated in their reports to have been based on forecasts derived from national averages of airplane usage compiled by the federal Environmental Protection Agency. We believe such generalized averages, not shown to be specifically applicable to or accurate for the subject airport, do not provide the reasonable probability and certainty required for the computation of damages herein (see p. 235, supra).

Finally, claimants' expert testified that his NEF values were in part based on a prior report concerning Republic and other airports by a "very good" noise authority (Exh. S-5). This report stated that "(w)hile NEF contours have utility for the public planning of land development in the vicinity of airports, they . . . are not designed to be used for the assessment of damages on individual pieces of property." (Id., p. 6.) The nature and source of this conclusion raise further doubts as to the subject NEF evaluations, notwithstanding the fact claimants' expert stated he did not agree with the conclusion.

Turning to defendant's NEF figures, its engineer found both properties to be on a NEF 40 contour before the taking and a NEF 42 contour after (i.e., as of 1979). As noted, this engineer's values were intentionally computed at a maximum, due not only to the two factors discussed above (which factors said engineer specifically referred to in his report) and the other mentioned factors, but also because all his calculations were purposefully on the high side. However, we are concerned here with actual damages resulting from actual noise levels, not hypothetical damages resulting from theoretical maximum noise levels. Thus defendant's NEFs are not usable in the ascertainment of noise damages either.

Nevertheless, we note the 1979 projections of aircraft traffic and mix on which defendant's after NEF values were based were derived from Republic's actual trends and experience, not national averages. Thus these projections were properly related to the specific airport and properties at bar. Accordingly, while the NEFs themselves are not usable herein, defendant's projections on which its engineer's NEFs were predicated do provide a proper basis for the determination of the noise levels encompassed within the subject easements (see pp. 235, 236, supra.)

Having found that the NEF calculations do not furnish a proper basis for the ascertainment of noise levels, we must observe that this finding has importance primarily in connection with the above noted noise limits of the easements taken (see, id.). The inadequacy of the NEF values has constrained the Court to use the underlying data (i.e., defendant's 1979 aircraft traffic and mix projection) rather than the more convenient NEFs as the basis for said limits. However, said inadequacy was only one of several evidentiary problems with respect to the would-be proof, particularly that of claimants', on the existence and amount of market value noise.

A more basic problem was the failure to demonstrate any usable relationship between the found NEF values and the market values of the particular subject properties. The report of defendant's engineer concluded the 2 NEF after taking change he found would not be significant enough to produce a change in the noise reaction of people using the subject property. This conclusion was apparently based on "experience" (described in a noise publication used by the State's engineer) that indicated a noise level change of less than 5 decibels would not produce a significant change in the general reaction to noise. [FN 11] However we are concerned with market value effects, which may or may not have a direct relationship to people's reaction to noise. [FN 12]

[FN 11] His report also concluded that the slight increase in noise levels found after taking was not due to the easement, but to the general increase in volume of overflights. This conclusion was apparently based on the engineer's underlying conclusion that the subject easements were merely a obstruction clearance plane higher than that previously established by the F.A.A. regulations. As noted, such conclusions are erroneous (see pp. 230, 231, 233, 235, supra).

[FN 12] We also note the conclusion here is questionable on two other bases. First, the factual basis for the "experience" was not shown. Second, on questioning by the Court, defendant's engineer stated there was no direct relationship between NEF values and decibels, only an indirect one. Thus it does not necessarily follow that there would not be a significant reaction to a 2 NEF change merely because such reaction doesn't occur at less than a 5 decibel change.

[FN 13] Although claimants' expert did not specify the exact amount of post- taking NEF changes he found, they appeared to be in the range of 3 to 8 NEFs (see Exh. 6).

Finally, claimants' expert did not even follow his own supposed criteria in evaluating the subject properties. Said criteria indicated that commercial and industrial uses were compatible between the 30 and 40 NEF contours and that office use was compatible within said contours with the inclusion of needed noise controls. [FN 14] As mentioned, claimants' map (Exh. 6) showed both properties between said contours after the taking and on the NEF 30 contour before the taking. Yet, in his report, claimants' engineer described their location as subject to higher noise levels and then, without explanation, found before and after ranges of use different from his supposed criteria. He characterized the Kupster property as "at the edge" of his pre-taking NEF 30 contour and "at the edge" of his post-taking NEF 40 contour. He placed the Schettini property "inside" his pre-taking NEF 30 contour and "close to the edge" of his post-taking NEF 40 contour. As to both properties' before uses, he found any residential use for them should be limited to apartments, with noise controls, and not single dwellings, while his "criteria" indicated no such limitations. More significantly, after the taking he found that not only office use but also commercial use required noise controls. He also added that Kupster's industrial use could only be for an industry noisy enough to mask the airplane noise, unless the Kupster building was soundproofed. His "criteria" attached no such conditions to commercial or industrial use. As noted, there was no explanation or evidentiary support for these new uses claimants' expert came up with.

[FN 14] Claimants' cost-to-cure report indicated the office area in the Kupster building already had such controls, i.e., an accoustical ceiling.

Claimants' real estate expert testified specifically that he relied on said noise report in assessing noise damage and the above-found inadequacy of the report by itself requires the rejection of said expert's findings of such damage. However, other deficiencies in this appraiser's evaluation should also be pointed out.

First, he used a cost-to-cure approach which was not properly supported. It is clear that before such an aid to the assessment of consequential damage can be utilized, it must first be shown that the cost-to-cure (and any remaining consequential damages to the property as cured) are less than the consequential damages to the property as cured. (See Goldsmith v. State, 32 A.D.2d 607, 299 N.Y.S.2d 51, affd., 26 N.Y.2d 899, 309 N.Y.S.2d 938, 258 N.E.2d 220.) Claimants' appraisals clearly do not contain this prerequisite showing and it is also clear claimants' appraiser and counsel were both unaware of the need therefor until after the commencement of trial, when this deficiency was pointed out to them by the Court. Claimants' appraiser attempted to remedy this omission by subsequent testimony at trial wherein he found uncured after values of $337,000 ($124,000 for land and $213,000 for building and, apparently, land improvements) for Kupster and $51,500 ($51,500 for land and zero for building and land improvements) for Schettini. His attempt obviously failed for the Kupster property since his damages as cured, $187,000, were not less than those resulting from the said uncured after value, $138,000. As to Schettini, his conclusion that the uncured improvements would have no after value is subject to serious doubt, even under claimants' noise expert's faulty analysis which was the supposed basis therefor.

In any event, we believe this testimony on uncured after values (and uses [FN 15]) violated that part of this Court's appraisal rule which precludes proof of matter not in the appraisals. (Court of Claims Rule 25a, subd. 5(a), 22 NYCRR 1200.27(e)(1).) At trial the Court allowed such testimony, over the State's strenuous objections, primarily because of the representations of claimants' appraiser that his uncured values were based in matter in his reports and also because the State was sufficiently apprised of the possibility of such testimony since the subject appraisals were clearly based on cost-to-cure approaches. However, upon a closer examination and analysis of claimants' appraisals and the relevant testimony, we believe the cost-to-cure evidence presented at trial cannot legitimately be considered as within the filed appraisals. While the respective costs-to-cure were clearly that, claimants' appraisals listed them as direct damages and gave no indication of the uncured uses and values which were presented for the first time at trial. Thus, counsel's objection and claim of surprise was proper since the filed appraisals gave insufficient information to allow the State to prepare for said testimony or offer rebuttal evidence of its own. Since we have found the testimony ineffective with respect to Kupster and unsupported with respect to Schettini, the State suffered no prejudice. Nonetheless, in the interests of clarifying the record, we note that the testimony of claimants' appraiser on uncured values and uses has been excised from our deliberations herein.

[FN 15] Claimants' appraiser's uncured after values for Kupster were testified to being based on an after highest and best use solely as a warehouse. Said use for Schettini was stated to be as warehouse use or a high noise industrial use, with the existing Schettini restaurant's size and shape making it unusable therefor.

The Court therefore finds that the market values of the subject properties were the same both before and after the instant takings [FN 16] and that neither said property suffered damage thereby. Accordingly, we conclude that the claims at bar should be dismissed. [FN 17]

[FN 16] In view of this finding, we see no need to further extend this opinion by deriving the quantitative before and, since identical, after market values. Also, such cannot be found for Schettini on the present record since (a) there was no proof of the state of development of the addition as of vesting, or of the enhancement value of the addition in such state, and (b) both appraisers relied on the cost approach even though they both admitted the property was not a specialty. Defendant's use of the cost approach was thus clearly wrong since he relied solely thereon (see, e.g., Vangellow v. State, 41 A.D.2d 1017, 343 N.Y.S.2d 638; see, also, Lanzilatta v. State, unreported, pp. 17-18, Court of Claims, Cl. No. 54498, filed 8/22/77, Rossetti, J.), but claimants' appraiser contended his use of said approach was proper since he supported it with an income approach. However, the rentals he used to derive his income values were of severely questionable comparability and his final before value exactly equaled his cost approach in all particulars. Thus his cost approach could be considered the one on which he solely relied. In any case, we see no point here in going into a fine legal analysis of whether something less than sole reliance on a cost approach is per se permissible for a non-specialty.

[FN 17] On two separate occasions after trial, the Court visited Republic Airport and extensively viewed the subject properties as well as Republic's runways and environs.