SUPREME COURT CORRECTLY DETERMINED THE HIGHEST AND BEST USE BASED ON THE ASSUMPTION THE PROPERTY WOULD HAVE BEEN REZONED, RAISING THE VALUE OF THE PROPERTY.

The Second Department determined Supreme Court properly valued the condemned property by assuming the property would have been rezoned, increasing its value:

Here, the Supreme Court properly determined that the claimant had established that, in the absence of the project, there was a reasonable probability that the property would have been rezoned to C6-2A. … The court’s findings that many of the buildings in the immediate area had been converted to commercial and residential use, that New York City policy was to rezone underutilized industrial sites to allow for commercial or residential development, and that a zoning district with a FAR of 6 would be in scale to this portion of Atlantic Avenue were supported by the record.  * * *

Further, the Supreme Court properly accepted the highest and best use proposed by the claimant of a 12-story budget hotel … . Contrary to ESDC’s [Empire State Development Corporation’s] contention, the … lease on the property did not prohibit a finding of a different highest and best use than contemplated in the lease, since the property must be valued at “its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time” … . Matter of 730 Equity Corp. v New York State Urban Dev. Corp., 2016 NY Slip Op 06086, 2nd Dept 9-21-16

EMINENT DOMAIN (SUPREME COURT CORRECTLY DETERMINED THE HIGHEST AND BEST USE BASED ON THE ASSUMPTION THE PROPERTY WOULD BE REZONED, RAISING THE VALUE OF THE PROPERTY)/HIGHEST AND BEST USE (EMINENT DOMAIN, SUPREME COURT CORRECTLY DETERMINED THE HIGHEST AND BEST USE BASED ON THE ASSUMPTION THE PROPERTY WOULD BE REZONED, RAISING THE VALUE OF THE PROPERTY)