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Court Reviews Condemnation Proceeding



This is a condemnation proceeding in which the Village of Garden City sought to acquire title in fee to certain property within the village for a parking field. The property to be acquired consists of 23 parcels all of which were heretofore zoned by the village for residential purposes. The evidence showed that a change in the zoning of property in the vicinity of the subject parcels had been under study since 1951 when the trustees of the village engaged a zoning expert to confer on a general revision of the ordinance. An advisory committee prepared and submitted to the trustees a draft of a proposed new zoning ordinance. This was the subject of a public hearing on January 25, 1953. A map delineating the proposed zone changes was dated and filed in the Nassau County Clerk’s office on March 20, 1953.

On June 25, 1953, a hearing was heard with respect to the proposed revision of the zoning ordinance before the Board of Trustees and the hearing was adjourned to July 2, 1953. On November 30, 1953, the report of the advisory committee was printed, and a memorandum was submitted by such committee to the Board of Trustees in which it was recommended that several of the parcels (D-1, D-2, and D-3, Washington Avenue frontage) be changed on the proposed map from C-O to R-6 Zone. The C-O Zone permitted the use of commercial offices on the property in that zone. In the R-6 Zone the property was restricted to one-family residences. On February 18, 1954, this recommendation was approved and adopted by the village trustees over the opposition of some of the property owners. The public hearing in relation to this condemnation proceeding was had on May 27, 1954.

One of the main issues in this condemnation proceeding was the contention on the part of some of the claimants that most of the property in question was not properly zoned, particularly with reference to the property facing on Washington Avenue in said village.

The claimants, the claimants’ experts, and counsel for the claimants raised the issue that some of the various parcels sought to be acquired were not properly zoned because of their location and the surrounding properties, the traffic on the street, the proximity of the gasoline service station at the corner of Washington Avenue and Old Country Road, and also the proximity to the other commercial office buildings on Old Country Road.

Witnesses generally stated that the best use of the property facing on Washington Avenue was for commercial office buildings. As to other parcels shown on the condemnation map, there was testimony from real estate expert witnesses that the best use of the property was for parking field purposes, rather than for residential uses, especially those parcels contiguous or close to the commercial office buildings which would need considerable parking facilities.

As to parcel D-1, the witness for the claimant testified that if the subject property were zoned for commercial office buildings its value would be $42,785, but for residential purposes only the parcel would be worth only $2,500. If, however, a professional man could have an office in the dwelling house, then the property would be worth $16,140. The witness for the village testified that he valued the said parcel D-1 at $4,100. Similar instances could be given as to other parcels on the damage map.

The question of law that arises as respects the Washington Avenue frontage is whether the expert witnesses in deciding upon the values could consider as a factor therein the reasonable probability that the zoning might be changed or whether they were restricted only to the value under the provisions of the zoning ordinance, even though the property was unfit for residential purposes and the highest and best use of it was for commercial office buildings, and in some cases outside the Washington Avenue frontage for private parking fields in connection with the office buildings on Old Country Road. Furthermore, the discrepancy in value between the property used for commercial office purposes and the property used for residential purposes was so great that the continuance of the property in a residential zone would amount to confiscation, and in all probability in a proper case if the ordinance was attacked the Court would find confiscation.

Since the valuation in eminent domain, is a judicial question based upon equitable principles, the courts sitting in judgment in determining the compensation endeavor to weight the justice and fairness between the condemnor and the condemnee, and attempt to arrive at a valuation which they deem to be fair and equitable to both parties.

Fair market value of property actually taken as of the date of appropriation resides in an estimate and a determination of what is the fair, economic, just and equitable value under normal conditions. All elements of value that inhere in the property should be considered.

Where there is a possibility or probability that the zoning restriction may in the future be repealed or amended so as to permit the use in question, such likelihood may be considered if the prospect of such repeal or amendment is sufficiently likely to have an appreciable influence upon present market value. It follows from the foregoing that such possible change in the zoning regulations must not be remote or speculative.

The owner of lands being entitled to their fair market value for the most profitable use for which the property is available, this use cannot be cut down because the condemnor is in a position to refuse a consent necessary to make available the lands for such use, and does so refuse because of the effect upon the price in a contemplated condemnation. Each owner, so long as he is holding the property, is entitled to be considered in the same position as if his lands were not to be sought in condemnation.

It is generally held that although an ordinance may prohibit the use of the property for certain purposes at the time of condemnation, yet if there is a reasonable probability that the ordinance may be changed or an exception made, the value for that purpose as affected by the existing ordinance may be considered.

The compensation awarded when land is taken by eminent domain is the market value of the land for any use to which it is adapted and for which it is available. It is also said: ‘When however a particular use of property is prohibited or restricted by law, but there is a reasonable probability that the prohibition or restriction will be modified or removed in the near future, the effect of such probability upon the value of the property may be taken into consideration.’

The prevailing opinion held that there was nothing in the record tending to show any reasonable probability that the prohibition or restriction would be modified or removed in the near future. The Court said, ‘Neither industry nor business has been invading the residential development in the involved area’.

Referring to the above quotation taken from the prevailing opinion in the case last cited (citation omitted), that ‘Neither industry nor business has been invading the residential development in the involved area’, it must be kept in mind that in the case at bar business has invaded the area in question to a marked degree, thus affording grounds for a reasonable probability that the prohibition or restriction would be modified or removed in the near future.

In his report dated June 9, 1953, in the Matter of Acquiring Title by Union Free School District No. 23, Town of Hempstead, Nassau County, N. Y., the undersigned Official Referee wrote:

‘The objector has misconceived the determination of the official referee heretofore made. In his determination the official referee has given full and due consideration to the fact that the subject land presently is restricted in accordance with the zoning laws of the Town of Hempstead. However, giving full force and effect to this restriction, the official referee in arriving at a determination of the market value of the land in question is not restricted to a valuation predicated on the narrow use of the property permitted by a zoning ordinance, but may take into consideration what any prospective purchaser might consider, viz.–the uses for which the property is otherwise best suited, for which it is most valuable, and any reasonable probability whether such prohibition or restriction would be modified or removed in the near future.’

‘The constitutional guarantee of reasonable compensation upon a taking for public use would become of little or no importance if the compensation is always restricted to the basis of only a use of property permitted by a zoning ordinance. Such an ordinance may be repealed or amended after the property is acquired. If a municipality could enact a zoning ordinance and later determine to acquire property covered by such ordinance by condemnation and have the right to completely exclude in such condemnation proceeding consideration of any use to which the property might be put except such as are specifically permitted by the ordinance in question, the owner would lose the constitutional guarantee of reasonable compensation upon a taking for public use if there existed a reasonable probability that the restrictions might soon be modified.’

‘Prospective purchasers of the property would not be so limited in their appraisal or valuation, but would, no doubt, give consideration to the influence upon the value of the land in question of uses to which the land was particularly adapted by reason of its character, its location, its surroundings, taken in connection with any reasonable probability of the modification of such restrictions, even though a zoning ordinance presently proscribed or limited such uses. In arriving at the market value of premises, a court should take into consideration those matters which might affect prospective purchasers in their valuation of the land in question, because it is the attitude of these prospective purchasers which in the end makes market value.’

Without making any attack on the ordinance in question it is the opinion of the Official Referee that there is in this case evidence from which the Court is able to find that there is more than a reasonable probability that this ordinance would be changed, especially in regard to the property fronting on Washington Avenue, and that, therefore, the real estate experts as to the various parcels had the right to consider the reasonable probability of such change as a factor in fixing their valuations. The Official Referee is of the opinion that under the facts in the case at bar the valuation of the various damage parcels given by the expert for the village, being predicated in every instance on the strait-jacket influence of the present zoning ordinance, is of little assistance to the Official Referee in fixing the valuation of any of the damage parcels.

Matters relating to the proper assessment of real property are within the province of experts in real property valuation. However, when the property in issue pertains to the constitution of family home or its conversion to a business area, questions of laws may be properly addressed by a Nassau County lawyer.

If you are dealing with similar issues as discussed above, seek the assistance of Stephen Bilkis & Associates.

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