Eminent Domain FAQ

View Eminent Domain/Condemnation FAQ
Eminent Domain FAQs about Eminent Domain Condemnation Law.

Print PDF

C) Eminent Domain – The Valuation/Proof

Highest and best use depends upon the proof of the reasonable likelihood of achieving the proposed economic development. It does not require proof of absolute certainty. Matter of City of New York [Jomar Real Estate Corp.], supra; Matter of City of New York [Rudnick], 25 N.Y.2d 146, 303 N.Y.S.2d 47 (1969); Matter of Town of Islip [Mascioli], 49 N.Y.2d 354, 426 N.Y.S.2d 220 (1980); Masten v. State of New York, 11 A.D.2d 370, 206 N.Y.S.2d 672 (3d Dept. 1960), aff’d, 9 N.Y.2d 796, 215 N.Y.S.2d 508 (1961).

In Matter of City of New York [Rudnick], supra, the Court of Appeals stated:

“The fact that governmental activity is required to achieve a use does not necessarily disqualify the use from consideration. Indeed, we have held that a particular best use of condemned property may be the basis of an award ... provided it is established that the granting of such variances was reasonably probable...”

See also, Village of Irvington v. Sokolik, 13 Misc.3d 1220(A), 831 N.Y.S.2d 351 (2006).

Valuation under highest and best use should reflect all the reasonable alternatives. The valuation is adjusted (by enhancement or discount) to reflect the probability of achieving approval of such use. See also, Metzner v. State of New York, 59 Misc.2d 603, 300 N.Y.S.2d 65 (N.Y. Ct. Cl. 1968), aff’d, 43 A.D.2d 774, 350 N.Y.S.2d 788 (3d Dept. 1973) (“[T]he court will discount from the final evaluation of these lands the probable expenses to be incurred for necessary cut and fill required to achieve an acceptable grade for development in accordance with the highest and best use.”); Matter of County of Clinton [Gagnon], 204 A.D.2d 898, 612 N.Y.S.2d 496 (3d Dept. 1994); and Village of Irvington v. Sokolik, supra. The property’s value is properly enhanced by an increment ascribed to the reasonable probability of the grant of a variance or special permit. See, Masten v. State of New York, 11 A.D.2d 370, 206 N.Y.S.2d 672 (3d Dept. 1960), aff’d, 9 N.Y.2d 796, 215 N.Y.S.2d 508 (1961).

The quantum of proof to establish probability of a use is “reasonable proof.” Matter of County of Nassau (Washington Ave., Plainview), 67 Misc.2d 144, 324 N.Y.S.2d 217 (Sup. Ct. Nassau Co., 1971) (emphasis added). See also, Matter of Town of Brookhaven (Englberger), 51 A.D.2d 804, 380 N.Y.S.2d 73 (2d Dept. 1976) (“fact that many of the neighboring properties are zoned for business use, supports the finding that there existed a reasonable probability that the subject parcel would be rezoned for a business use...”); Jankiewicz v. State of New York, 54 A.D.2d 1092, 388 N.Y.S.2d 742 (4th Dept. 1976) (considerations included growth and usage pattern in the area, zoning of adjacent properties and “the prior favorable recommendation of the town planning board for the rezoning to commercial use of the area, including the subject”).