Loujean Properties, Inc. v. Town Bd. of Town of Oyster Bay

• Decision Date: 09 April 1990
• Citation: 553 N.Y.S.2d 835,160 A.D.2d 797
• Parties: In the Matter of LOUJEAN PROPERTIES, INC., Respondent, v. TOWN BOARD OF THE TOWN OF OYSTER BAY, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 835

553 N.Y.S.2d 835

160 A.D.2d 797

In the Matter of LOUJEAN PROPERTIES, INC., Respondent, v. TOWN BOARD OF THE TOWN OF OYSTER BAY, et al., Appellants.

Supreme Court, Appellate Division Second Department.

April 9, 1990.

Robert W. Schmidt, Town Atty., Oyster Bay (Kenneth A. Davis, of counsel), for appellants.

Curtis & Shain, P.C., Massapequa (Ray E. Shain, of counsel), for respondent.

Before MANGANO, P.J., and THOMPSON, BRACKEN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action for a judgment declaring that the resolution of the defendant Town Board of the Town of Oyster Bay, dated October 6, 1987, denying the plaintiff's application for a rezoning is unconstitutional, originally denominated a proceeding pursuant to CPLR article 78, the defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County, (DiNoto, J.), entered August 12, 1988, as made the declaration in favor of the plaintiff.

ORDERED that the judgment is reversed insofar as appealed from, with costs, and it is declared that the resolution denying the plaintiff's application for a rezoning is constitutional.

In order to prove that an unconstitutional taking has occurred, a landowner must prove that the subject property cannot yield an economically reasonable return as zoned (see, de St. Aubin v. Flacke, 68 N.Y.2d 66, 76-77, 505 N.Y.S.2d 859, 496 N.E.2d 879; Spears v. Berle, 48 N.Y.2d 254, 263, 422 N.Y.S.2d 636, 397 N.E.2d 1304; Tilles Inv. Co. v. Town of Huntington, 137 A.D.2d 118, 122, 528 N.Y.S.2d 386, aff'd 74 N.Y.2d 885, 547 N.Y.S.2d 835, 547 N.E.2d 90). Conclusory testimony to the effect that the land cannot yield an economically reasonable return as zoned is insufficient (see, Matter of Village Bd. of Vil. of Fayetteville v. Jarrold, 53 N.Y.2d 254, 259, 440 N.Y.S.2d 908, 423 N.E.2d 385; Tilles Inv. Co. v. Town of Huntington, supra ). Instead, a landowner must offer proof of the market value of the property at the time of acquisition, and must also prove the current market value of the property as presently zoned (see, Matter of Village Bd. of Vil. of Fayetteville v. Jarrold, supra, 53 N.Y.2d at 258, 440 N.Y.S.2d 908, 423 N.E.2d 385; Tilles Inv. Co. v. Town of Huntington, supra, 137 A.D.2d at 122, 528 N.Y.S.2d 386; N. Westchester Professional Park Assoc. v. Town of Bedford, 92 A.D.2d 267, 272, 460 N.Y.S.2d 112, aff'd 60 N.Y.2d 492, 470 N.Y.S.2d 350, 458 N.E.2d 809; Curtiss-Wright Corp. v. Town of East Hampton, 82 A.D.2d...