Speach v. Smith

46 A.D.2d 1001, 361 N.Y.S.2d 790, 1974 N.Y. App. Div. LEXIS 3384

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1974
• Status: Published

Opinion

Judgment unanimously modified, on the law and facts, in accordance with memorandum and as modified affirmed, without costs. Memorandum: The commissioners found upon sufficient evidence that the subject property was zoned Residential A, that it had little value for single residence use and that a reasonable probability existed of rezoning to Residential RB-1 for development with apartment buildings. Although the city’s appraiser valued on a per dwelling unit basis, he offered a square foot valuation at the hearing, the same cost unit utilized by the property owner’s appraiser. The final value found by the commission was within the experts’ range of value and gave consideration to the probability of rezoning. While the methodology by which the appraisers found a land value based upon prospective zoning and then reduced it to reflect the present zoning is not preferred, it is acceptable in this case in view of the admitted difficulty in finding residential comparables and the explanation by the commission of its calculations (Norris v. State of New York, 42 A D 2d 839; see Yochmowitz v. State of New York, 25 A D 2d 930, mot. for lv. to app. den. 18 N Y 2d 579). However, the commissioners improperly added a 30% increment to the land value to reflect rezoning and this resulted in the probability of rezoning being considered twice. We therefore conclude that the award should be modified to $653,850. (Appeal from judgment of Onondaga Special Term in condemnation proceeding.) Present — Marsh, P. J., Witmer, Cardamone, Simons and Mahoney, JJ.