H. J. E. Real Estate, Inc. v. Town of Hempstead

Appellate Division of the Supreme Court of New York

H. J. E. Real Estate, Inc. v. Town of Hempstead

55 A.D.2d 927, 390 N.Y.S.2d 636, 1977 N.Y. App. Div. LEXIS 10181

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 24, 1977

StatusPublished

Cited by3 cases

This text of 55 A.D.2d 927 (H. J. E. Real Estate, Inc. v. Town of Hempstead) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

H. J. E. Real Estate, Inc. v. Town of Hempstead, 55 A.D.2d 927, 390 N.Y.S.2d 636, 1977 N.Y. App. Div. LEXIS 10181 (N.Y. Ct. App. 1977).

Pincite

Opinion

In an action for a judgment declaring the zoning of the plaintiffs premises as "C” Residence illegal, unconstitutional and void, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered January 29, 1976, which, after a nonjury trial, dismissed the complaint. Judgment modified, on the law, by deleting therefrom the provision which dismissed the complaint and substituting therefor a provision declaring that plaintiff failed to sustain its burden of establishing that the ordinance, insofar as it affects the subject property, is unconstitutional and void. As so modified, judgment affirmed, with costs to defendant. The findings of fact are affirmed. (See Lanza v Wagner, 11 NY2d 317, 334.) It is our opinion that the plaintiff has not met its burden of proving that the ordinance in question is confiscatory and, accordingly, unconstitutional (see Dauernheim, Inc. v Town Bd. of Town of Hempstead, 33 NY2d 468). Although the plaintiff, through its witnesses, admitted that the real property in question was valued at $126,000 as it is presently zoned, it failed to adduce, for the record, the original purchase price. Accordingly, it cannot be determined on this record whether the plaintiff may obtain a reasonable return on his investment as the property is presently zoned. Plaintiff also failed to adduce "dollar and cents” evidence to establish that it was economically unfeasible to continue to use its property as a nursery. In view of the plaintiff’s president’s admission that 10% of the premises is utilized for planting, it may be said that the accessory use of selling greenery, for which the plaintiff uses its property, is permitted under the zoning ordinance (see 1 Anderson, New York Zoning Law and Practice, § 11.28, p 537). It is our opinion that whether the trial court was authorized by counsel to inspect the premises is of little importance herein. Hopkins, Acting P. J., Damiani, Rabin, Shapiro and Hawkins, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action for a judgment declaring the zoning of the plaintiffs premises as "C” Residence illegal, unconstitutional and void, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered January 29, 1976, which, after a nonjury trial, dismissed the complaint. Judgment modified, on the law, by deleting therefrom the provision which dismissed the complaint and substituting therefor a provision declaring that plaintiff failed to sustain its burden of establishing that the ordinance, insofar as it affects the subject property, is unconstitutional and void. As so modified, judgment affirmed, with costs to defendant. The findings of fact are affirmed. (See Lanza v Wagner, 11 NY2d 317, 334.) It is our opinion that the plaintiff has not met its burden of proving that the ordinance in question is confiscatory and, accordingly, unconstitutional (see Dauernheim, Inc. v Town Bd. of Town of Hempstead, 33 NY2d 468). Although the plaintiff, through its witnesses, admitted that the real property in question was valued at $126,000 as it is presently zoned, it failed to adduce, for the record, the original purchase price. Accordingly, it cannot be determined on this record whether the plaintiff may obtain a reasonable return on his investment as the property is presently zoned. Plaintiff also failed to adduce "dollar and cents” evidence to establish that it was economically unfeasible to continue to use its property as a nursery. In view of the plaintiff’s president’s admission that 10% of the premises is utilized for planting, it may be said that the accessory use of selling greenery, for which the plaintiff uses its property, is permitted under the zoning ordinance (see 1 Anderson, New York Zoning Law and Practice, § 11.28, p 537). It is our opinion that whether the trial court was authorized by counsel to inspect the premises is of little importance herein. Hopkins, Acting P. J., Damiani, Rabin, Shapiro and Hawkins, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

55 A.D.2d 927, 390 N.Y.S.2d 636, 1977 N.Y. App. Div. LEXIS 10181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-j-e-real-estate-inc-v-town-of-hempstead-nyappdiv-1977.

Opinion

Related

Cite This Page — Counsel Stack