Northern Westchester Professional Park Associates v. Town of Bedford

• Decision Date: 21 March 1983
• Citation: 92 A.D.2d 267,460 N.Y.S.2d 112
• Parties: NORTHERN WESTCHESTER PROFESSIONAL PARK ASSOCIATES, Respondent-Appellant, v. The TOWN OF BEDFORD, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 112

460 N.Y.S.2d 112

92 A.D.2d 267

NORTHERN WESTCHESTER PROFESSIONAL PARK ASSOCIATES Respondent-Appellant, v. The TOWN OF BEDFORD, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

March 21, 1983.

James F. Donohue, White Plains (McCarthy, Fingar, Donovan, Glatthaar, Drazen & Smith, Henry J. Smith and James G. Fine, White Plains, of counsel), for appellant-respondent.

Shamberg, Bender, Marwell & Cherneff, P.C., Mount Kisco (Stuart R. Shamberg, Robert F. Davis and Martin Bender, Mount Kisco, of counsel), for respondent-appellant.

Before MOLLEN, P.J., and LAZER, MANGANO and BROWN, JJ.

MOLLEN, Presiding Justice.

At issue here is whether the zoning ordinance of the Town of Bedford is arbitrary or confiscatory as applied to plaintiff's property. Plaintiff demanded a declaratory judgment to that effect, and sought money damages as well. After a nonjury trial, Special Term dismissed plaintiff's cause of action for money damages, but otherwise sustained plaintiff's claims by issuing a judgment declaring, inter alia, that "the Zoning Ordinance of the Town of Bedford in existence on the date hereof is illegal, invalid and unconstitutional insofar as it applies to the real property of Plaintiff".

In our view, the evidence at trial was insufficient to establish that the ordinance, as applied to plaintiff's property, has no substantial relationship to public health, safety, morals or general welfare, or that the property, as presently zoned, will not yield a reasonable return. Accordingly, we modify by deleting so much of the judgment as declared the ordinance unconstitutional, and we declare that, as applied to the plaintiff's property, the ordinance is not unconstitutional.

The subject property is a parcel of approximately 12.6 acres, of which .9 acres are located in the Town/Village of Mount Kisco. The remaining 11.7 acres are located in the Town of Bedford. The parcel, bounded on the south by Route 172, and on the east by McLain Street, lies in a two-acre residential zone and is improved by two residential dwellings. The land along McLain Street to the north and east of the subject property is also in a two-acre residential zone and is developed consistent with that zoning. Pursuant to a special use permit, the land across McLain Street from the subject property is occupied by a boys' school and study center.

To the southwest, the subject property is bounded by a parcel, also owned by plaintiff, which the Town of Bedford rezoned in 1965 from two-acre residential use to professional-business-offi use. That parcel is occupied by two medical buildings and two office buildings. The land to the west of the subject property is located in the Town/Village of Mount Kisco in a "research-office" use zone. The land to the southeast, across Route 172, is also located in Mount Kisco and is zoned for multi-family residential use, office development, and a marsh preserve.

Plaintiff purchased the subject property in 1978 for a total price of $265,000. In February, 1979 plaintiff petitioned the Town Board of the Town of Bedford to rezone the subject property as a "planned business-office park", suggesting as a condition that access to and from the subject property be limited to Route 172. The Bedford Planning Board recommended rezoning to "PB-O" professional business office use, upon the additional condition that plaintiff erect a buffer of at least 100 feet between the subject property and adjacent residential property. The Mount Kisco Planning Board, however, objected to the proposed rezoning on the grounds that the proposed development's impact on traffic flow had not been adequately considered, that the intensity of development in the proposed zone is some four times greater than the intensity permitted to the southeast of the subject property, and that the buffer areas proposed by the Bedford Planning Board were inadequate. The Westchester County Planning Board also objected on the grounds that the proposed zoning was contrary to the town's master plan, and that Route 172 lacked the capacity to accommodate the traffic which would be generated by full development of the subject property for business-office use. On or about November 28, 1979, plaintiff's application for rezoning was denied.

Thereafter, plaintiff commenced the instant action seeking, inter alia, a judgment declaring that the zoning ordinance of the Town of Bedford, as applied to the subject property, was unconstitutional in that it is both arbitrary and confiscatory. At trial, expert testimony was offered to demonstrate that the residential character of the land to the north and northeast of the subject property would be adequately protected if access to and from the subject property were restricted to Route 172 with no access onto McLain Street and if a permanent buffer were erected between the subject property and adjacent residential property.

On the question of traffic congestion on Route 172, however, plaintiff's witness, George Raymond, acknowledged that the development of the subject property for office use would generate 3,500 cars per day. According to the witness, in the peak hour of the morning, the proposed development would generate 600 cars per day, constituting 18% of the capacity of Route 172; in the peak hour of the evening, the proposed development would generate 525 cars, constituting 14% of Route 172's capacity. There was testimony that, by the year 2005, Route 172 will not have sufficient capacity to accommodate traffic generated by this proposed development, and by other proposed developments along that route. The Commissioner of Planning of Westchester County noted that any decision to widen Route 172 would have to come from the State. The State Department of Transportation had no plans to improve the relevant portions of Route 172, between Route 117 and Interstate 684.

On the question of value, plaintiff's experts testified that the value of the property, as presently zoned, is between $140,000 and $170,000, while, if rezoned, the property would be worth in excess of $900,000. Plaintiff explored the possibility of subdividing the subject property into five residential lots, and estimated the cost of physical improvements necessary for subdivision as $61,500. One of plaintiff's witnesses concluded that if the property were subdivided into five residential lots, its total value would be $265,000. Nevertheless, after taking into consideration the costs of subdivision, including $61,500 for physical improvements and $25,000 for engineering and legal fees, he determined that the value of the subject property as is, was only $140,000. Another witness for plaintiff determined that the subject property is currently worth $170,000. He estimated that the land, after subdivision, would be worth $230,000, and he opined that the smaller of the two residential dwellings on the property was salvageable, and worth $30,000. Thus, he estimated that the total value of the land, after subdivision, plus improvements, was $260,000. In arriving at the lower figure of $170,000, he took into consideration the costs of the physical improvements necessary for subdivision, but, in so doing, he apparently overstated those costs by nearly $30,000. A third witness for plaintiff testified that the smaller residential dwelling on the property was worth between $60,000 and $65,000. Nevertheless, she concluded that the subject property was worth only between $150,000 and $160,000.

Defendant's appraiser, using the comparable sales...