Marra v. State

• Decision Date: 20 January 1978
• Docket Number: Nos. 52519,52761,s. 52519
• Citation: 61 A.D.2d 38,401 N.Y.S.2d 349
• Parties: Rose MARRA, Respondent, v. The STATE of New York, Appellant. Claim
• Court: New York Supreme Court — Appellate Division

Page 349

401 N.Y.S.2d 349

61 A.D.2d 38

Rose MARRA, Respondent, v. The STATE of New York, Appellant. Claim Nos. 52519, 52761.

Supreme Court, Appellate Division, Fourth Department.

Jan. 20, 1978.

Louis J. Lefkowitz, Atty. Gen., Albany, for appellant (Jean Coon, Albany, of counsel).

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, for respondent (William Allen, Syracuse, of counsel).

Before MARSH, P. J., and MOULE, SIMONS, DILLON and WITMER, JJ.

MOULE, Justice.

The State of New York appeals from two judgments of the Court of Claims. The first awarded claimant the sum of $61,447.10 plus interest for appropriations occurring in 1961 and 1968; the second awarded her the sum of $215,535.34 plus interest as damages for an appropriation occurring in 1969.

Claimant owned four parcels of land located in the Village of East Syracuse which were the subjects of two claims. She owned 4.679 acres of land, referred to as Parcel 1, fronting on East Second Street along its northern boundary, upon which there were buildings and improvements in connection with an automobile salvage operation. The remaining parcels, referred to as Parcels 2A, 2B and 2C, respectively, were situated to the east of Parcel 1, beyond an intervening lot the ownership of which was not established. The largest of the three, Parcel 2A, comprised 26.606 acres with frontage also on East Second Street along a portion of its northern boundary. This parcel was separated from Parcel 1 by approximately 500 feet. Directly south of Parcel 2A was Parcel 2B, which contained 8.445 acres of backland and was separated from Parcel 2A by a railroad right of way. Further south was Parcel 2C, consisting of 2.330 acres of backland separated from Parcel 2B by a second railroad right of way.

In 1932 when claimant acquired the subject parcels of land there was no licensing, zoning or permit requirement existing with respect to her use of the land. In 1954 the Village adopted an ordinance requiring a license for the business of junk collecting. Such a license was issued annually between 1954 and 1973 to Central City Used Parts, Inc., a corporation comprised of several members of claimant's family which leased the land from claimant and operated the auto salvage business. By 1956 the Village had adopted a zoning ordinance, making the storage of old automobiles for automobile junkyards in industrial zones subject to the requirement of a special written permit issued by the Board of Appeals. Provision was made for the continuation of nonconforming uses; however, the ordinance prohibited the extension of any nonconforming use to displace a conforming use.

The first claim with which we are concerned arose from the appropriation in 1961 of the two railroad rights of way separating claimant's three easterly parcels and the appropriation in 1968 of one of those parcels, 2C. Following a trial the Court of Claims awarded claimant total damages of $61,447.10 plus interest for these appropriations, of which $2,330.00 was attributable to the taking of Parcel 2C and $59,117.10 was attributable to the effect on Parcel 2B of the appropriation of the railroad line separating it from Parcel 2A. The court found that with respect to this railroad line, which had been abandoned prior to the taking, there was a reasonable likelihood that claimant could have purchased railroad crossing rights adequate for the development of Parcel 2B before the appropriation Therefore, the court awarded $59,117.10 for the potential use of Parcel 2B of which claimant was deprived. As to the railroad line separating Parcels 2B and 2C, the court found no such likelihood of obtaining crossing rights, inasmuch as the evidence showed that this was a heavily-trafficked main line. Therefore, no damage was attributed to Parcel 2C by reason of the taking of this railroad property.

In its assessment of damages to Parcel 2B the court included the loss of a 30% Premium value amounting to $15,201.54 due to a finding that the subject property, which was zoned for industrial use, enjoyed the benefit of a preexisting nonconforming use as a junkyard. The State's sole contention with respect to this claim is that claimant failed to prove sufficient use of Parcel 2B to establish a nonconforming use under the village zoning ordinance and that, therefore, she was not entitled to have this premium added to the value of Parcel 2B.

The evidence adduced at trial clearly showed that Parcel 1 was actively being used for automobile salvage operations at the time of the 1956 zoning enactment and was, therefore, a nonconforming use on that date. With respect to Parcels 2B and 2C the record shows that some cars may have been placed on them, but only for the purpose of showing that eventually the property would be used for salvage operations.

In determining whether the inception of a nonconforming use on a limited part of a plot constitutes a preemption of the entirety of the plot for such use, "(t)he criterion is whether the nature of the incipient non-conforming use, in the light of the character and adaptability to such use of the entire parcel manifestly implies an appropriation of the entirety to such use prior to the adoption of the restrictive ordinance" (Matter of Fairmeadows Mobile Village, Inc. v. Shaw, 16 A.D.2d 137, 142, 226 N.Y.S.2d 565, 569; lv. to app. den., 11 N.Y.2d 646, 229 N.Y.S.2d 1026, 183 N.E.2d 770; 2 Rathkopf, Law of Zoning and Planning, pp. 60-3 60-4). Additionally, where a nonconforming use necessarily anticipates occupation of a claimant's entire land holdings, the owner is entitled to have an increment in value attributable to such nonconforming use applied to all of the land (Wholesale Coop. Meat Dealers Assn. v. State of New York, 45 A.D.2d 14, 15, 356 N.Y.S.2d 138, 139-140). However, where the use does not and may not occupy the entire tract, the adjustment in value for the nonconforming use should be limited to that portion of land which the business may reasonably require and lawfully develop in the foreseeable future, absent appropriation, and the...