Eminent Domain FAQ

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Eminent Domain FAQs about Eminent Domain Condemnation Law.

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If the proof shows that the land is adjustable to a particular use that would increase its value on the open market, the owner is entitled to such enhancement. Matter of City of New York [New Gen. Hosp.], 280 A.D. 196, 112 N.Y.S.2d 101 (1st Dept. 1952), aff’d, 305 N.Y. 835, 114 N.E.2d 38 (1953). See also, Matter of County of Clinton [Gagnon], 204 A.D.2d 898, 612 N.Y.S.2d 496 (3d Dept. 1994).

In In re City of New York [Sanitation Garage Brooklyn Dist. 3 and 3A], 29 Misc.3d 1226(A), 920 N.Y.S.2d 240 (2010), the Court held:

“Thus, it is a “well-recognized rule that an increment or discount ascribed to a reasonable probability of a zoning change must have a basis in the evidence” (County of Nassau v. Cohen, 39, N.Y.2d 574, 577-578 [1976]). Accordingly, a claimant’s comparable sales may properly be adjusted to reflect the value of land enhanced by the possibility of a zoning change, provided that there is sufficient proof to support the trial court’s award, i.e., such comparables are proper so long as they are adjusted to “reflect a diminished figure for the fact that rezoning has not actually been accomplished” (Glennon v. State, 40 A.D.2d 1072 [1972], quoting Yochmowitz v. State of New York, 25 A.D.2d 930 [1966], lv denied 18 N.Y.2d 579 [1966]). Stated differently, the value of the subject property must be properly discounted to reflect the fact that removal of a restriction was not an accomplished fact (Schwartz v. State, 72 A.D.2d 490, 492 [1980]). “No matter how probable an amendment may seem, an element of uncertainty remains and has its impact upon the selling price. At most a buyer would pay a premium for that probability in addition to what the property is worth under the restrictions of the existing ordinance” (Masten, 11 A.D.2d at 372-373 [internal citation omitted]; accord In re County of Nassau, 49 A.D.2d 748 [1975] [the trial court should have considered the uncertainty of procuring a variance as a discount factor]).” (Emphasis Added)

D) Proving the Potential

Of course, highest and best use or the development potential or probabilities of a property cannot be speculative. The evidence or proof must be based on some solid foundation of expert opinion. This requires credible and professionally competent evidence to establish this potential or probability.

In Shore Haven Apts. No. 6 v. Commissioner of Fin. of City of N.Y., 93 A.D.2d 233, 461 N.Y.S.2d 885 (2d Dept. 1983), the Court stated:

“When an expert opinion lacks factual support and is bolstered only by the expert’s qualifications, it carries little probative value (Vircillo v State of New York, 24 AD2d 534; Katz v State of New York, 10 AD2d 164) and should be rejected (Matter of Seagram & Sons v Tax Comm. of City of N. Y., 18 AD2d 109, affd 14 NY2d 314; Yonkers Urban Renewal Agency v 44 Prospect St., 49 AD2d 894) for it cannot be weighed intelligently...”

Frequently, this will require the testimony of an engineer to show the practicality or feasibility of a proposed project development. Cf., Northville Indus. Corp. v. Bd. of Assessors of Town of Riverhead, 143 A.D.2d 135, 531 N.Y.S.2d 592 (2d Dept. 1988). An engineer or professional land planner could provide proof that there was a reasonable probability of a zoning change. However, an appraiser may, under certain circumstances, qualify to offer testimony on the probability (or lack thereof) of approvals under the zoning code provided the appraiser actually examined these land planning precedents. See, In re City of New York [Sanitation Garage Brooklyn Dist. 3 and 3A], supra.

For questions or to discuss items presented in this topic, please contact Saul Fenchel.