The Second Department determined the valuation of land for condemnation purposes should not have been based upon the assumption a special use permit would be granted, allowing the construction of retail stores on the property:
The Supreme Court also erred in determining that the highest and best use of parcel 1 and parcel 2 on the date of the taking was retail use at the maximum allowable density. “The measure of damages in a condemnation case must reflect the fair market value of the property in 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'”… . The determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future … . “Ordinarily potential uses the court may consider in determining value are limited to those uses permitted by the zoning regulations at the time of taking” … . However, when there is a reasonable probability of rezoning, some adjustment must be made to the value of the property to reflect that fact … .
Here, the claimants failed to establish that there was a reasonable probability that they would have been granted a special use permit … . The expert planner did not review the history of any special use permit applications to the Town Board, or reference any large-scale retail developments that were located on the vesting date in the immediate area of the subject property. Matter of Town of Oyster Bay v 55 Motor Ave. Co., LLC, 2017 NY Slip Op 08672, Second Dept 12-13-17
MUNICIPAL LAW (IN THIS CONDEMNATION PROCEEDING, VALUATION OF REAL PROPERTY BASED UPON THE ASSUMPTION A SPECIAL USE PERMIT WOULD BE GRANTED WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/EMINENT DOMAIN (IN THIS CONDEMNATION PROCEEDING, VALUATION OF REAL PROPERTY BASED UPON THE ASSUMPTION A SPECIAL USE PERMIT WOULD BE GRANTED WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/CONDEMNATION (EMINENT DOMAIN, IN THIS CONDEMNATION PROCEEDING, VALUATION OF REAL PROPERTY BASED UPON THE ASSUMPTION A SPECIAL USE PERMIT WOULD BE GRANTED WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/HIGHEST AND BEST USE (IN THIS CONDEMNATION PROCEEDING, VALUATION OF REAL PROPERTY BASED UPON THE ASSUMPTION A SPECIAL USE PERMIT WOULD BE GRANTED WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))