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MATTER INCORPORATED VILLAGE HEWLETT BAY PARK (06/04/68)
SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY
1968.NY.41933 <http://www.versuslaw.com>; 290 N.Y.S.2d 841; 56 Misc. 2d 1085
June 4, 1968
IN THE MATTER OF THE INCORPORATED VILLAGE OF HEWLETT BAY PARK, IN NASSAU COUNTY, RELATIVE TO ACQUIRING TITLE TO REAL PROPERTY FOR VILLAGE STORAGE PURPOSES
Charles E. Lapp, Jr. and Jack Norden, Jr., for petitioners.
Raphael, Searles & Vischi (Sidney Z. Searles of counsel), for claimant.
Howard T. Hogan, J.
In this proceeding in eminent domain the Incorporated Village of Hewlett Bay Park has vested title to a parcel of land containing 40,390 square feet.
When the petition to condemn was presented, this court denied the application on the grounds that the village was perverting the condemnation process, and utilizing its powers solely to proscribe a use for the property which it deemed distasteful, to wit, as a parking area for conjunctive use with a shopping center. That determination was reversed by the Appellate Division and the Court of Appeals declined to hear further appeal at that time on the grounds that the order of vesting pursuant to the order of the Appellate Division was not a final order. (48 Misc. 2d 833, revd. 27 A.D.2d 578, mot. for lv. to app. den. 19 N.Y.2d 747.) A trial has now been had on the issue of compensation.
The petitioner's real estate expert valued the property as "vacant residential property" and ascribed a value of $17,500 for the parcel.
Originally the claimant had retained the late Frank Wittman as its expert. The expert who testified on behalf of the claimant stated at the outset that he had an interest in the award to the extent of one quarter of one eighth percent. Claimant's expert valued the parcel in light of probable relief from the zoning ordinance, and in addition to the direct damages sustained by virtue of the taking of the subject parcel, he ascribed consequential damage to the contiguous shopping center owned by the owner herein. He approached the problem as in a partial taking, and found a land value before of $697,579.15 for the entire parcel and a remainder of $518,056.65. Of his damage of $179,522.50 his direct damage was $100,997.50 based upon 40,390 square feet at $2.50 and his consequential damage was $75,000 based upon the loss of 100 accessory parking places by the shopping center at $750 per place.
The Village of Hewlett Bay Park has but one type of building zone, residential. The community as a whole is one of large parcels of land improved for the most part with impressive and desirable homes. Nevertheless, there are some nonresidential uses within the confines of the village. These include a private school, a parking lot for Hewlett High School, a park and duck pond as well as an area used for village storage. In addition, the village has attracted many physicians who utilize portions of their homes for their practices.
Adjacent to the subject property on the northeasterly side is a parcel of land which is located within the village, but which is contiguous with a parcel located within the unincorporated area of the Town of Hempstead. Garden apartments have been constructed in the unincorporated area and, while there is no structure erected upon the land within the village, it is utilized by the apartment tenants as their rear yards and play area. Moreover, the area within the village was included by the town in calculating the density permitted by the town for the garden apartments.
Immediately outside the incorporated village the keynote is business. Contiguous with the damage parcel on the northwest is the shopping center owned by the claimant. Across from the westerly corner of the land taken is business. Adjacent to the northerly corner is the apartment complex. Within 200 feet of the taken parcel is Broadway in Hewlett, an extremely busy street with business on both sides and which services one of the best known shopping districts in the affluent area known as the "Five Towns".
As demonstrative as the exhibits and the testimony of the witnesses are, an actual view of the property underscores the accuracy of the testimony of claimant's witness Tobler, an expert in the field of zoning. There is no question but that sound zoning practice would permit the use of the subject property as a parking lot in conjunction with the adjacent shopping center. It would create a buffer between the highly commercialized area and the residentially zoned village.
By the same token, the parcel is slightly smaller than the minimum parcel for residential development within the village which is now one acre minimum. In the immediate vicinity of the subject parcel are two homes located on large parcels of land with the buildings set back substantially from the subject parcel and visually isolated from the damage parcel by hedges, trees and shrubs. One of these, owned by Dr. Amer, is contiguous with business zoned property in the township on one side. The other, formerly owned by Florence B. Carter, is adjacent to the subject parcel. Mrs. Carter once owned, in addition to her home, the area now improved with the shopping center and the damage parcel. The deed from Mrs. Carter to claimant's predecessor in title contains limitations in the use not only of the subject property, but also of the land now improved with the shopping center. However, the use of the damage parcel as a parking field, subject to the zoning authorities' consent, is provided for and consented to by Mrs. Carter in the deed to claimant's predecessor. Neither of these homes would be adversely affected by permissive parking on the subject parcel, and the owner of the Carter home is bound by the consent of his predecessor.
Equally important is the fact that it would be extremely difficult, if not impossible, to find a purchaser for the subject property who would erect upon it a single-family residence. Not only is the subject parcel the property adjacent to the shopping center, but it is also substandard under the present zoning ordinance, and its relatively small size precludes the erection of an appropriate home on the parcel which could be properly screened from the commercial use. It is simply too small to enable the owner to get away from the business and to erect a suitable home.
The village zoning ordinance gives the Board of Trustees the power to grant special exceptions to permit any use accessory to property outside the village (art. IV, § 15 [2e]). Petitioner argues that no special exception could be granted since the ordinance does not specify parking as such use, and cites Matter of Simensky v. Mangravite (16 A.D.2d 977, affd. 12 N.Y.2d 908).
That case holds that "special exception procedure applies only to uses or improvements expressly permitted by the zoning ordinance, but with such permission subject to approval by an official body". In the facts of that case a petitioner sought to utilize special exception procedures to vary the height of a proposed structure and the number of stories. Also involved was the number and size of parking places required.
The court distinguished that type of application from a "use" restriction such as is in the ordinance at bar. Here claimant would seek to vary the zoning requirements in accordance with the terms of that ordinance, namely, to enable the use of property within the village as use accessory to property outside the village. While it is unlikely that the village would permit the parking usage, since it has fought to keep the village residential, the court concludes that there is every reasonable probability that relief would be granted by the court to enable the use of the subject property for accessory parking. The fact that the village as the condemnor takes the position that it would not permit relief is an irrelevant factor (Albany Country Club v. State of New York, 19 A.D.2d 199 [3d Dept., 1963], affd. 13 N.Y.2d 1085Page 1089} ; Mastroieni v. State of New York, 25 A.D.2d 463 [3d Dept., 1966]). Indeed, an argument by the village ...