Opinion
July 8, 1970
Appeal from a judgment in favor of claimants, entered April 14, 1969, upon a decision of the Court of Claims. In this claim resulting from the appropriation of a part of claimants' land for highway purposes, the principal dispute concerns the inclusion of damages due to increased traffic noise in the award for consequential damages. The property, prior to appropriation, consisted of about 45,470 square feet, was irregularly shaped and located between Pinewood Road and Jericho Turnpike in the Village of Old Westbury, Nassau County. It was improved with a one-family residence fronting on and nearer to Pinewood Road. In the back yard and a short distance to the rear of the house were a swimming pool and bathhouse enclosed by a stockade fence. Further to the rear, the parcel was landscaped with trees and shrubbery and a six-foot high stockade fence ran along the rear boundary bordering on Jericho Turnpike, a heavily trafficked four-lane highway. The acquisition was for the purpose of widening Jericho Turnpike to an eight-lane highway. The fee taken was a rectangular plot containing 5,625 square feet along the rear adjacent to the Turnpike, to a depth varying between 43 and 50 feet. The State also took a permanent easement covering a gore of 432 square feet adjoining the fee taking. Included on the State's acquirement were the stockade fence along the rear boundary, some split rail fencing along a side area and landscaping, consisting of about 10 trees of different varieties, shrubbery and lawn. The distance between the house and the Turnpike, at the nearest point, was reduced from 165 to 112 feet. The Court of Claims found that "there was consequential damage to the remainder since the noise has increased to a large degree and the privacy has been lessened, and the property has lost the enhancement value of the trees and landscaping." No award was made for an alleged resulting zoning problem. Then, after making its findings as to before and after values, the court allocated the resulting damage figure as follows: $2,000 for the fee taking, $150 for the permanent easement, $600 for the "fencing, blacktop, etc." and $2,500 for the consequential damage done to the remainder. Although both appraisers included damages for fencing and landscaping in their direct damage allowances, the record contains no references to any blacktop being taken. We do not know whether the enhancement value of the landscaping taken was included in the $600 or $2,500 item as awarded. However, we find that claimant is entitled to $1,200 for the fencing and enhancement in value of the landscaping. One of the claimants admitted that a person could not see over the stockade fence running along the Turnpike boundary prior to appropriation. Their appraiser conceded that there was not loss of privacy after the taking in the pool area because the stockade fence there shielded it from Jericho Turnpike and, thus, the only real damage in the pool section was the increase in traffic noise. This appraiser further admitted that this would hold for the remainder of the property — if there were a fence that couldn't be seen through on the new rear boundary, such as the stockade fence taken. The basket weave fence, erected subsequent to appropriation and which has narrow slits which can be seen through, was one of claimants' own choosing. From the record, it appears that any lessening of privacy apart from the noise factor is minimal. Where there has been a partial taking of property possessing "quietude, tranquility and privacy", qualities claimant desires and which undoubtedly would be taken into account by an owner and prospective purchaser in fixing market value, the noise element may be considered as one of several factors in determining consequential damages but, of course, this does not mean that resulting traffic noise is an element of consequential damage in all partial takings, without restriction ( Dennison v. State of New York, 22 N.Y.2d 409, 413-414). Far from the "entirely secluded, quiet and peaceful" setting pictured in Dennison ( supra, p. 411), claimants' Jericho Turnpike realty has suffered essentially no loss of privacy apart from the noise factor and to award damages for increased traffic noise in this instance would be to do so in the impermissible "quite unrestricted form" ( Dennison v. State of New York, supra, p. 413). Judgment modified, on the law and the facts, so as to vacate and set aside the award of $2,500 for consequential damages, and of $600 for "fencing, blacktop, etc." and, in its stead, award claimant $1,200 for fencing and enhancement in value of the landscaping; and, as so modified, the judgment is affirmed, without costs. Reynolds, J.P., Aulisi, Staley, Jr., Cooke and Sweeney, JJ., concur in memorandum by Cooke, J.