Town of Islip, Matter of

• Decision Date: 12 February 1980
• Citation: 49 N.Y.2d 354,426 N.Y.S.2d 220,402 N.E.2d 1123
• Parties: , 402 N.E.2d 1123 In the Matter of TOWN OF ISLIP, Appellant-Respondent, Relative to Acquiring Title to Real Property Situated in the Hamlet of Sayville. Joseph Mascioli et al., Respondents-Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 220

426 N.Y.S.2d 220

49 N.Y.2d 354, 402 N.E.2d 1123

In the Matter of TOWN OF ISLIP, Appellant-Respondent,

Relative to Acquiring Title to Real Property

Situated in the Hamlet of Sayville.

Joseph Mascioli et al., Respondents-Appellants.

Court of Appeals of New York.

Feb. 12, 1980.

Francis G. Caldeira, Town Atty. (William J. Kent, Brooklyn, of counsel), for appellant-respondent

Edward Flower, Staten Island, for respondents-appellants.

OPINION OF THE COURT

WACHTLER, Judge.

In a condemnation case, where the Town of Islip acquired land which at the time of taking was undeveloped but had been restrictively zoned residential by the town, the Supreme Court, after trial, found the property "unsuitable for residence use" and awarded the claimants, its former owners, an increment above, and in addition to, its residential value. The Appellate Division affirmed, with one dissent.

The town and the claimants have cross-appealed to this court. There is no dispute over that portion of the award which represents the residential value of the property as determined by the trial court. Only the increment is in issue. The town urges that the claimants are not entitled to any increment, while the claimants argue that the amount of the increment should be larger than the court allowed.

Both appeals have been taken in reliance on CPLR 5601 (subd. (a), par. (i)) which permits an appeal as of right from an Appellate Division order of affirmance when there is a dissent on a question of law in favor of the party taking the appeal. In this case, the dissenter at the Appellate Division, took the position that there was no basis in the record for awarding the claimants any increment. This dissent was favorable only to the town, and the claimants' cross appeal must be dismissed. ¹ Thus we are not concerned with the amount of the increment. The only question properly before us is whether on this record it was error, as the town contends, for the court to grant any increment above the residential value of the property.

In 1973 the claimants owned a parcel of undeveloped land located in the Hamlet of Sayville. The property is slightly larger than an acre and is completely surrounded by public thoroughfares. It is bounded on the south by Montauk Highway, on the north by Old Montauk Highway, on the west by Broadway Avenue and on the east by Old Broadway. The property is long and narrow and irregular in shape. It runs in a straight line along the south boundary for over 500 feet, curves along the northern boundary to a maximum depth of approximately 100 feet, narrowing at each end to a depth of about 30 feet on the west and 40 feet on the east. The zoning in the area includes mixed residential and business uses. Nearby there are restaurants, small businesses, professional offices and residences along the highways which converge on the claimants' property. The plot belonging the the claimants, however, was zoned residential.

In late 1973 claimants applied to the town for a change of zone from Residential AA to Business I in order to erect a small office building on the site. However, the town planning board recommended that this application be denied and that the town acquire the property in condemnation. When title passed to the town by condemnation in 1974, the property was still zoned residential. The town then contended that compensation to the owners should be limited to the residential value of the property.

At the trial held on the compensation issue, claimants' experts testified that the property was valuable and best suited for commercial development and that its peculiar location, size and shape made it unsuitable for residential use with little or no market value if offered for sale only as a residential plot. In their opinion these factors, together with the pattern of zoning and development in the area, created a reasonable probability that the property would be rezoned and that they should therefore be awarded an increment above the residential value. They also submitted evidence and estimates as to the market value of the property in light of the potential for rezoning.

The town, on the other hand, introduced proof that in recent years it had consistently refused to "downzone" other properties in the area. It also submitted a plan for residential development of the property which, according to its experts, would satisfy the residential zoning requirements. Thus in the opinion of its experts there was no reasonable probability of a change in zone, and their estimates were limited to the residential value of the property.

The court found that the property located on a small "semi-eliptical" shaped "island" which could only accommodate homes of a "limited size * * * with little, if any, rear yards" surrounded "on all sides by roads" two of which were main highways, was "unsuitable for residence use". "This fact" the court noted, "was readily admitted by the supervisor of the town, who, in voting to deny claimants' application for rezoning just prior to the instant application to condemn, stated: 'I would not want to raise my kids there though.' " The court also found that there was no reasonable probability that the town would have voluntarily rezoned the property upon application, but that the claimants might have been able to obtain the same relief in a court action on the ground that the residential zoning deprived them of "the reasonable use of the property". Accordingly the court awarded the claimants an increment above the residential value of the property. As noted, the Appellate Division affirmed the findings and determination of the trial court.

An owner whose property has been taken in condemnation is entitled to just compensation (U.S.Const., 5th Amdt.; N.Y.Const., art. I, § 7, subd. (a)). The measure generally is market value at the time of appropriation, that is, the price a willing buyer would have paid a willing seller for the property (County of Erie v. Fridenberg, 221 N.Y. 389, 117 N.E. 611; Matter of Board of Water Supply of City of N. Y., 277 N.Y. 452, 14 N.E.2d 789; Keator v. State of New York, 23 N.Y.2d 337, 339, 296 N.Y.S.2d 767, 769, 244 N.E.2d 248, 249). This appraisal should be based on the highest and best use of the property even though the owner may not have been utilizing the property to its fullest potential when it was taken by the public authority (Matter of County of Suffolk (Firester), 37 N.Y.2d 649, 652, 376 N.Y.S.2d 458, 461, 339 N.E.2d 154, 156; Keator v. State of New York, supra, 23 N.Y.2d at p. 339, 296 N.Y.S.2d p. 769, 244 N.E.2d at p. 249).

Ordinarily the potential uses the court may consider in determining value are limited to those uses permitted by the zoning regulations at the time of taking (4 Nichols, Eminent Domain (3d ed), § 12.322). When, however, there is a reasonable probability of rezoning, some adjustment must be made to...