Masten v. State, 34452

Decision Date04 November 1960
Docket NumberNo. 34452,34452
Citation206 N.Y.S.2d 672,11 A.D.2d 370
PartiesSeymere L. MASTEN and Elizabeth Langereis Masten, Claimants-Respondents-Appellants, v. STATE of New York, Defendant-Appellant-Respondent. Claim
CourtNew York Supreme Court — Appellate Division

Louis J. Lefkowitz, Atty. Gen. (Paxton Blair and Julius L. Sackman, Albany, of counsel), for defendant-appellant-respondent.

E. & S. L. & E. Greenberg, New York City (Emanuel Greenberg, New York City, of counsel), for claimants-respondents-appellants.

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

GIBSON, Justice.

The State appeals, and claimants cross-appeal, from a judgment of the Court of Claims awarding $62,000 for the appropriation of certain lands for Thruway purposes. The taking was of 6.26 acres in Rockland County from a parcel of 49.234 acres fronting on Route 59, a busy cross-county highway connecting Route 9W and Route 17. The improvement--a dwelling, barn and smaller buildings--were not taken. Claimants resided upon the premises. A small part of the acreage under cultivation was used for growing vegetables and the remainder as an apple orchard.

The principal issue, which seems the critical one, arises from proof intended to demonstrate the imminence of a change in the existing zoning restrictions. We find, contrary to the State's contention, that the proof established 'the reasonable probability that the zoning might be changed' to permit the use of claimants' highway frontage (then restricted to residential use) for commercial purposes; and that such probability thereupon became a factor in the determination of value. Matter of Incorporated Village of Garden City, 9 Misc.2d 693, 698, 167 N.Y.S.2d 166, 170, affirmed 4 A.D.2d 783, 165 N.Y.S.2d 1022, motion for leave to appeal denied 3 N.Y.2d 708, 167 N.Y.S.2d LXXI; Valley Stream Lawns, Inc. v. State of New York, 9 A.D.2d 149, 192 N.Y.S.2d 805. The proof was that a number of business and commercial establishments existed in the neighborhood before the appropriation; that the highway traffic became increasingly heavy; that a large number of variances from the residential restrictions were granted before and after the appropriation and that, apparently, no applications therefor were denied. The State objected to the evidence as to variances and it is true that an occasional, isolated variance granted in the exercise of discretion would have little or no probative force; but here the effect is to evidence a condition and continuing trend that rendered early rezoning very nearly inevitable. More significant, perhaps, was the proof that about a year before the appropriation a citizen's committee was appointed by resolution of the Ramapo Town Board to work with that and other boards upon zoning revision and that (as appears from an exhibit erroneously excluded) there followed study and several reprots and hearings, after which and some three years after the appropriation, there was enacted a comprehensive amendment of the ordinance which, among other things, placed the frontage of claimants' property in a highway business district. Evidence of this same nature was accorded considerable weight in the Garden City case, supra, 9 Misc.2d at pages 695-696, 167 N.Y.S.2d at pages 168-169 and the relevance of such proof was recognized in State by State Highway Com'rs v. Gorga, 26 N.J. 113, 138 A.2d 833, cited by both parties.

The State contends further that, even if it be assumed that the probability of a rezoning was properly shown, the claimants' expert evidence must nevertheless be rejected because the expert evaluated the property as though the change was an accomplished fact. As we held in Valley Stream Lawns, supra, 9 A.D.2d 149, at page 152, 192 N.Y.S.2d 805, at apge 808, the probabilities 'may be shown to have an actual effect on an existing market. The fact they may not actually happen is not to say this possibility does not influence the market'; and as was said in Gorga, supra, 26 N.J. at page 117, 138 A.2d at page 835, 'The important caveat is that the true issue is not the value of the property for the use which would be permitted if the amendment were adopted. * * * No matter how probable an amendment may seem, an element of uncertainty remains and has its impact upon the selling price. At most a buyer would pay a permium for that probability in addition...

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  • Public School No. 223, City of New York, In re
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    ...at the time of the taking and to add an increment ascribed to the reasonable probability of the zoning change (Masten v. State of New York, 11 A.D.2d 370, 206 N.Y.S.2d 672, affd. 9 N.Y.2d 796, 215 N.Y.S.2d 508, 175 N.E.2d 166; see Matter of Inc. Vil. of Garden City (Goodgold-Fowler ), 9 Mis......
  • Cnty. of Orange v. Monroe Bakertown Rd. Realty, Inc.
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    ...circumstances affecting the subject property “ ‘may be shown to have an actual effect on an existing market’ ” (Masten v. State of New York, 11 A.D.2d 370, 372, 206 N.Y.S.2d 672, affd. 9 N.Y.2d 796, 215 N.Y.S.2d 508, 175 N.E.2d 166, quoting Valley Stream Lawns v. State of New York, 9 A.D.2d......
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    ...259, 265, 243 N.Y.S.2d 149, 155 (Sup.Ct.1963), aff'd, 22 A.D.2d 895, 255 N.Y.S.2d 411 (2d Dep't 1964). But cf. Masten v. State, 11 A.D.2d 370, 206 N.Y.S.2d 672 (3d Dep't 1960), aff'd, 9 N.Y.2d 796, 215 N.Y.S.2d 508, 175 N.E.2d 166 (1961), (reasonable probability of imminent zoning change su......
  • Bruckner Expressway, Borough of Bronx, City of New York, In re
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    ...den. 3 N.Y.2d 708, 167 N.Y.S.2d LXXI; Valley Stream Lawns v. State of New York, 9 A.D.2d 149, 192 N.Y.S.2d 805; Masten v. State of New York, 11 A.D.2d 370, 206 N.Y.S.2d 672, aff'd 9 N.Y.2d 796, 215 N.Y.S.2d 508, 175 N.E.2d 166; City of Albany v. State of New York, 16 A.D.2d 163, 226 N.Y.S.2......
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1 books & journal articles
  • 9.1 II. Highest And Best Uses At Variance With EXIsting Zoning And/Or Other Regulations
    • United States
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    ...see, e.g., Maloney, 75 Misc. 2d at 276; Rodman v. State, 109 A.D.2d 737, 737, 485 N.Y.S.2d 842 (2d Dep’t 1985). [352] Maston v. State, 11 A.D.2d 370, 372, 206 N.Y.S.2d 672 (3d Dep’t 1960), aff’d, 9 N.Y.2d 796, 215 N.Y.S.2d 508 (1961). [353] 49 N.Y.2d 354, 361, 426 N.Y.S.2d 220 (1980). [354]......

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