Suffolk County, Matter of

Decision Date09 July 1979
Parties, 392 N.E.2d 1236 In the Matter of the COUNTY OF SUFFOLK, Appellant, Relative to Acquiring Title to Real Property known as Van Bourgondien Nurseries, in the Town of Babylon, C. J. VAN BOURGONDIEN, INC., et al., Respondents.
CourtNew York Court of Appeals Court of Appeals
Howard E. Pachman, County Atty. (Harvey B. Besunder, Hauppauge, of counsel), for appellant

MEYER, Judge.

The County of Suffolk condemned the 19-acre parcel of property on which the Van Bourgondien family had conducted a flower-growing nursery business for over half a century. The property included a large greenhouse complex and several residences. The question before us is the proper method of valuing the property. Ordinarily a landowner is only entitled to the market value of his property in its highest and best use. However if a parcel is sufficiently unique it is a specialty and is valued by the so-called summation approach, at land value plus the replacement cost of improvements less depreciation. Special Term held that the property was not a specialty, that the highest and best use of the land was for residential development, and that the greenhouse complex was inconsistent with this use and therefore had no value. The Appellate Division modified, on the law and the facts, holding that the property was a specialty and should be valued accordingly. Upon remand to Special Condemnation Term the parties stipulated the reproduction cost less depreciation value of the property. The county now appeals from the amended order and decree fixing the award by the summation approach. We agree that the property is a specialty and, therefore, affirm.

The condemned parcel, which consisted of 18.9 acres in western Suffolk (Town of Babylon) zoned Residential C, was improved with a greenhouse complex, a main residence, and three smaller houses. The first greenhouse was constructed in 1920 and at the time of condemnation claimants had 125,000 square feet of land under glass. The main residence was used as a headquarters in the running of the business and was equipped with special instruments so that the family could constantly monitor the atmospheric conditions in the greenhouses.

In May of 1972 claimants contracted to sell the property for $725,000, contingent upon the rezoning of the land to multiple residence. The contract, which reserved to them the right to remove buildings, equipment and plants from the premises, terminated when the zoning application was withdrawn. A subsequent contract was terminated for like reason and the county's appraiser testified that there was no reasonable probability that multiple residence zoning would be granted.

On December 9, 1974 title to the property vested in the county. Claimants continued business on the property until September, 1975, vacating it entirely on November 2, 1975. At trial the county valued the property at $497,500, contending that its highest and best use was for residential development and that claimants had attempted to sell the property because high land taxes made the business no longer feasible in western Suffolk. There was testimony that although no wholesale flower business had been constructed or purchased as such in western Suffolk during at least the preceding five years, a number had been sold during that period for residential development. However, the evidence indicated that claimants' business was improving, gross sales having been $216,000 in 1973, while in 1974 they reached $311,000 and were, for the 8 to 10 months of 1975 that claimants had use of the property, $306,000. Special Condemnation Term valued the property at $507,000, holding that its best use was for residential development and attributing no value at all to the greenhouse complex. The Appellate Division having modified, the question which confronts us is whether claimants' nursery property is to be valued as a specialty.

The general rule is that when land is taken in eminent domain, its owner is to be compensated for the market value of the property in its highest and best use (Matter of Rochester Urban Renewal Agency (Patchen Post), 45 N.Y.2d 1, 407 N.Y.S.2d 641, 379 N.E.2d 169). However, as we have previously noted, occasions arise in which property is so unique or so seldom traded that market value is not an adequate basis for compensation (Id., at pp. 9-10, 407 N.Y.S.2d at pp. 644-645, 379 N.E.2d at pp. 171-172; see, also, 1 Orgel, Valuation under Eminent Domain (2d ed.), § 40). Article I (§ 7, subd. (a)) of the New York State Constitution mandates that "Private property shall not be taken for public use without just compensation." Therefore where a property is so unique as to constitute a specialty, the owner must be compensated by adding to its land value the replacement cost of the property and subtracting from that sum depreciation (Matter of Rochester Urban Renewal Agency (Patchen Post), supra ).

What constitutes a specialty is defined in Matter of County of Nassau (Colony Beach Club of Lido), 43 A.D.2d 45, 349 N.Y.S.2d 422, affd. 39 N.Y.2d 958, 386 N.Y.S.2d 886, 353 N.E.2d 849. There the Appellate Division enunciated (43 A.D.2d, at p. 49, 349 N.Y.S.2d, at p. 427) four criteria of a specialty: "(a) The improvement must be Unique and must be specially built for the specific purpose for which it is designed; (b) There must be a Special use for which the improvement is designed and the improvement must be so specially used; (c) There must be No market for the type of property * * * and no sales of property for such use; and (d) The improvement must be an appropriate improvement at the time of the taking and its use must be Economically feasible and reasonably expected to be replaced." (Emphasis in original.) In Matter of Great Atlantic & Pacific Tea Co. v. Kiernan, 42 N.Y.2d 236, 240, 397 N.Y.S.2d 718, 721, 366 N.E.2d 808, 811, in the context of a tax certiorari proceeding we added a further refinement to the element of uniqueness: "a specialty may perhaps be best defined as a structure which is Uniquely adapted to the business conducted upon it or use made of it And cannot be converted to other uses without the expenditure of substantial sums of money". (Emphasis in original.) Application of these criteria to the subject property requires the conclusion that it is a specialty.

The county contends that claimants' greenhouses are not unique because they can be purchased on the open market. However the requirement of...

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