53 Misc. 2d 740 | New York Court of Claims | 1967
This is a claim for the appropriation of claimant’s land pursuant to section 30 of the Highway-Law, and acts amendatory thereto, which proceeding is described as Lake Onondaga West Shore Development — North
The claim herein was tried before a Judge of the Court of Claims and, by decision dated May 28, 1964, an award of $20,000.00 was made. The State appealed from the judgment entered after the Court of Claims decision. Said judgment was ‘6 reversed on the law and facts and a new trial granted. ’ ’ (Zogby v. State of New York, 26 A D 2d 899.) The principal grounds for reversal were the lack of comparable sales and the lack of proof relative to a probability of change in zoning from residential use to that of industrial use.
Before the appropriation subject property consisted of 13.393± acres of land without frontage on any highway. Said property was in an essentially rectangular shape. It ran from the Delaware, Lackawanna & Western Railroad Company right of way, in an easterly direction, to the former railroad right of way of the Empire State Liquidation Corporation which was west of, but in close proximity to, the west shore of Onondaga Lake.
'Claimant’s access to said property was by a farm crossing located at the northwest corner of said property, where the Delaware, Lackawanna & Western Railroad right of way abutted claimant’s land on the west and the State highway known as Van Vleck Road on the east. Said farm crossing was approximately 82.5 feet in length across said right of way and approximately 15 feet in width. It had been maintained by claimant and her predecessors in title for many years. The only use made of claimant’s land, however, prior to the appropriation was for agricultural purposes, primarily growing of grapes and truck garden vegetables.
As stated previously the Appellate Division in reversing the original decision did so, in part, on the lack of evidence relative to a probability of zoning change, residential to industrial/ From the evidence presented it became clear to this court that the Town of G-eddes has been most reluctant to grant a change in zoning from residential to industrial. However, claimant contends, as the Appellate Division, Fourth Dept., in Soron Realty Co. v. Town of Geddes (23 A D 2d 165 [1965]) held, that the zoning amendment which changed subject property from unclassified to Residential B was invalid and null and void, we must consider subject property in an unclassified zone in 1965 which permitted an industrial use. At first blush
We further consider that a willing buyer with knowledge of all the facts, which is one of the important criteria in determining fair market value, would not be knowledgeable unless assisted by counsel. We believe it within reasonable probability that such counsel would arrive at the same conclusion as did the Appellate Division in 1965. We, therefore, believe claimant’s property could be valued with an enhancement for probable industrial use.
The Soron decision held the 1954 amendments to the zoning ordinance to be “null and void.” By dictionary definition (Ballentine’s Law Dictionary [2d ed.]) “ null and void ” means, ‘1 That Avhich binds no one; that which is incapable of giving rise to any rights or obligations under any circumstances; that which is of no effect.” It is our finding that the intendment of the appellate court was consonant with said dictionary definition and cannot be held to have meant that said amendments were merely voidable. (See Matter of New York & Long Is. Bridge Co. v. Smith, 148 N. Y. 540.) As stated in the Soron decision (p. 168): “In view of our conclusion that the amendments to the Zoning Ordinance are invalid by reason of the failure to comply with the provisions of section 264 of the Town Law, it is not necessary to pass upon the other grounds of invalidity asserted by plaintiffs nor to determine whether a nonconforming use existed as to the remaining portion of their property, which by this decision is located in an unclassified sone.” (Emphasis added.) (See, also, Village of Williston Park v. Israel, 191 Misc. 6, affd. 276 App. Div. 968, affd. 301 N. Y. 713.)
We have not found any case in New York on the question of the effect of a court invalidation of a zoning ordinance, years after the appropriation, on the highest and best use of said property on the taking date; and, counsel have not directed us to any authority on this question in their briefs. However, essentially this problem was discussed in Jersey Cent. Power & Light Co. v. Morris County Land Improvement Co. (91 N. J. Super. 40 [1966]). The fact situation was different, especially in respect to knowledge on the appropriation date. In this
We believe the decision in Winkelman Co., v. State of New York (17 Misc 2d 418, mod. 10 A D 2d 894) is of interest on the above as it relates to the fact situation found by Judge Major,. Said company had contracted to construct the highway which the State seeks to relate to this appropriation. It then contracted with claimant herein to purchase fill from subject property for use in this highway project. The lower court pointed out (p. 420) that the specifications stated: “‘All borrow pits outside
The Judge then went on to write that: “ It is very evident the State’s engineer had no objection to the use of the sites in question before the contract was signed. 'His reluctance to approve developed * * * after taking thé matter up with the Onondaga County Park Board secretary. There is no evidence that the secretary knew the details of claimant’s agreement to grade and drain the properties. The grading of such borrow site properties could very well have been more advantageous * * * especially for parking.” (Emphasis added.)
In our opinion, the above substantiates our opinion that the State never intended to use subject property for highway purposes ; as in fact it did not. Obviously, if Onondaga County had appropriated subject property at about the time it intended to utilize it for park purposes, which time apparently still lies in the future, said property would have benefitted by a significant increase in value. The inequities of the situation are graphically pointed up by the State’s “XVI Conclusion of Law,” which, generally speaking, correctly states the condemnation law on comparable sales as follows: “Asa matter of law, sales situated on highways or service roads which were built as part of the same highway project for which the subject area was appropriated cannot be considered or used as comparable sales.” Thus by lumping together in one statute a present public highway use and a future public park use, the State seeks to prevent the landowner from obtaining fair market value predicated upon the proximity of her land to an important interchange of the New York State Thruway. As we consider that subject appropriation had no relation to said highway appropriation, we believe it proper to consider sales for industrial purposes in this area in relation to subject’s fair market value before the appropriation. We also believe that the situation presented in this claim fits, to some extent, within the doctrine set forth in Andrews v. State
Having established that the existing zoning in 1955 permitted an industrial use, claimant was faced with the accessibility of the property for an industrial use. The State did not raise the question of farm access at the first trial and, in fact, apparently did not develop its legal posture on this point until a day or two before the second trial. We arrive at this conclusion because the State’s appraiser came to the second trial with the same appraisal, which was predicated on a residential highest and best use; and, all of the State’s comparable sales related to such a use. However, at the trial the State proved that claimant’s access was no greater than a farm crossing from Van Vleck Road. Apparently when claimant’s predecessor in title conveyed the fee to the railroad, he did not reserve any access to this otherwise landlocked parcel. Claimant contended that such a
Claimant contended that, because of the long interval of time between the date of filing of the appropriation map, i.e., January 6,1955, and personal service of said map, i.e., December 7, 1959, she was entitled to interest on the award from January 6, 1955 to December 7,1959. We reserved decision on this motion. We now deny such motion under the authority of LaPorte v. State of New York (6 N Y 2d 1). (See, also, Walker v. State of New York, 15 Misc 2d 4.) Claimant is entitled to interest for the six-month period commencing with January 6, 1955 and the period after December 2,1961 to entry of judgment herein.
Claimant requested the court to take judicial notice of the decision in Winkelman Co. v. State of New York (17 Misc 2d 418, supra), which we did; and, to reproduce in this record the testimony of an expert witness in that trial relative to the amount of borrow which the Winkelman Company could have removed from claimant’s property. Said witness was not available to the claimant herein and her counsel sought to justify such procedure under the rule of Fleury v. Edwards (14 N Y 2d 334). Although the State was a party to the Winkelman trial, with full rights to cross-examination in that contract claim, we did not believe the fact situation warranted our application of the Fleury rule to subject claim. The claimant’s land was intact in January, 1967, and claimant could easily have obtained expert testimony relative to the gravel or borrow deposits to present in this trial. If, however, the claimant’s land had been destroyed before her counsel could have reasonably developed such expert testimony, we believe such prior testimony would have been admissible in this trial. The point becomes academic in this trial, as claimant’s expert appraiser did not seek to testify to the enhancing value of gravel or borrow deposits (Matter of Huie, 1 A D 2d 500); and, this prior expert testimony was proffered after said appraiser had completed his testimony.