In re Town of Oyster Bay, 2015-00175, Index No. 18701/10.

• Decision Date: 04 May 2016
• Docket Number: 2015-00175, Index No. 18701/10.
• Citation: 30 N.Y.S.3d 699,139 A.D.3d 741,2016 N.Y. Slip Op. 03515
• Parties: In the Matter of Town of OYSTER BAY, respondent; BPJ Marine Corporation, doing business as Gus Marine, appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 741

30 N.Y.S.3d 699

2016 N.Y. Slip Op. 03515

In the Matter of Town of OYSTER BAY, respondent; BPJ Marine Corporation, doing business as Gus Marine, appellant.

2015-00175, Index No. 18701/10.

Supreme Court, Appellate Division, Second Department, New York.

May 4, 2016.

Robert G. Litt, Rockville Centre, N.Y. (Joseph Aufenanger of counsel), for appellant.

Leonard Genova, Town Attorney, Oyster Bay, N.Y. (Karen J. Underwood of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, RUTH C. BALKIN, and JEFFREY A. COHEN, JJ.

In a condemnation proceeding, the claimant appeals from a judgment of the Supreme Court, Nassau County (Adams, J.), dated April 25, 2014, which, upon a decision of the same court dated December 3, 2013, made after a nonjury trial, adjudged that the claimant would be awarded no additional compensation beyond that already paid by the petitioner as compensation for the taking of the subject property.

ORDERED that the judgment is affirmed, with costs.

The measure of damages in a condemnation case “must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time” (Chemical Corp. v. Town of E. Hampton, 298 A.D.2d 419, 420, 748 N.Y.S.2d 606 ; see Chester Indus. Park Assoc., LLP v. State of New York, 65 A.D.3d 513, 884 N.Y.S.2d 243 ). “In determining an award to an owner of condemned property, the findings must either be within the range of the expert testimony or be supported by other evidence and adequately explained by the court” (Matter of City of New York [Reiss], 55 N.Y.2d 885, 886, 449 N.Y.S.2d 18, 433 N.E.2d 1266 ; see Matter of Metropolitan Transp. Auth. [Washed Aggregate Resources, Inc.], 102 A.D.3d 787, 790, 958 N.Y.S.2d 405 ).

Here, the appellant contends that the Supreme Court erred in valuing the subject property based upon its continued use as a marina, rather than its value for residential townhouse development. The record shows that a zoning change and area variances would be required for the subject property to be used for residential townhouse development (see Code of the Town of Oyster Bay [hereinafter the Town Code] § 246–5.2). “Generally, upon condemnation, property value should be calculated with due consideration paid to the applicable restrictions upon use” of the property (Basile v. Town of Southampton, 89 N.Y.2d 974, 976, 655 N.Y.S.2d 877, 678 N.E.2d 489 ). When there is a reasonable probability of rezoning, some adjustment must be made to the value of the property to reflect that fact (see id. at 976, 655 N.Y.S.2d 877, 678 N.E.2d 489 ; Matter of City of Yonkers v. Celwyn Co., 221 A.D.2d 437, 438, 633 N.Y.S.2d 578 ; see also Matter of New Cr. Bluebelt, Phase 4, 122 A.D.3d 859, 861–863, 997 N.Y.S.2d 447 ).

The property is located in a General Business zoning district, and a 2005 change to the Town Code expressly prohibits the construction of townhouses in General Business districts (see Town Code § 246–5.2). Even if the zoning were to be changed to permit the construction of townhouses, the proposed use of the property would require substantial area variances (see Town Code § 246–5.3). Under these circumstances, the record does not show that there is a reasonable probability that a zoning change and area variances would be granted to allow the use of the property for residential townhouse development (see Matter of Affordable Homes of Long Is., LLC v. Monteverde, 128...