HBP Associates v. County of Orange

Appellate Division of the Supreme Court of New York

HBP Associates v. County of Orange

277 A.D.2d 237, 716 N.Y.S.2d 584, 2000 N.Y. App. Div. LEXIS 11221

Appellate Division of the Supreme Court of the State of New York·Decided November 6, 2000·Published·Cited by 3 cases

Opinion

—In an eminent domain proceeding, the County of Orange appeals from a judgment of the Supreme Court, Orange County (Palella, J.), dated February 2, 1999, which is in favor of the petitioner and against it in the principal sum of $1,351,010, plus an additional allowance of $111,537 pursuant to EDPL 701.

Ordered that the judgment is affirmed, with costs.

The determination of the highest and best use of a property must be based upon evidence of a use which reasonably could or would be made of it in the near future (see, Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535, 536; Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280; Matter of City of New York v Estate of Levine, 196 AD2d 654; Matter of Consolidated Edison Co. v Neptune Assocs., 190 AD2d 669). A “use which is no more than a speculative or hypothetical arrangement in the mind of the claimant may not be accepted as the basis for an award” (Matter of City of New York [Shorefront High School-Rudnick], 25 NY2d 146, 149; Matter of City of New York [Broadway Cary Corp.], supra, at 536). Applying these principles, the petitioner satisfied its burden of proving that the highest and best use of its property was for a shopping center with so-called “pad sites.”

The appellant’s remaining contentions are without merit. Mangano, P. J., Ritter, S. Miller and H. Miller, JJ., concur.

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—In an eminent domain proceeding, the County of Orange appeals from a judgment of the Supreme Court, Orange County (Palella, J.), dated February 2, 1999, which is in favor of the petitioner and against it in the principal sum of $1,351,010, plus an additional allowance of $111,537 pursuant to EDPL 701.

Ordered that the judgment is affirmed, with costs.

The determination of the highest and best use of a property must be based upon evidence of a use which reasonably could or would be made of it in the near future (see, Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535, 536; Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280; Matter of City of New York v Estate of Levine, 196 AD2d 654; Matter of Consolidated Edison Co. v Neptune Assocs., 190 AD2d 669). A “use which is no more than a speculative or hypothetical arrangement in the mind of the claimant may not be accepted as the basis for an award” (Matter of City of New York [Shorefront High School-Rudnick], 25 NY2d 146, 149; Matter of City of New York [Broadway Cary Corp.], supra, at 536). Applying these principles, the petitioner satisfied its burden of proving that the highest and best use of its property was for a shopping center with so-called “pad sites.”

The appellant’s remaining contentions are without merit. Mangano, P. J., Ritter, S. Miller and H. Miller, JJ., concur.

HBP Associates v. County of Orange, 277 A.D.2d 237, 716 N.Y.S.2d 584, 2000 N.Y. App. Div. LEXIS 11221 (N.Y. Ct. App. 2000).

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