The concept of limitation to one group of owners compared to others because of a proposed condemnation constitutes an unconstitutional denial of equal rights. We see this in cases where there has been a rezoning, but because parcels were to be taken in the exercise of eminent domain, the benefit of the up-zoning is denied.
In Matter of City of New York (Inwood Hill Park Addition), 230 AD 31 (1st Dept 1930), afd. 256 NY 556 (1931), the Court held that there may be no deprivation of the right to submit any element of value which a property owner had at title vesting. In this case, the lower court refused to consider the highest and best use of an apartment building. The City had withheld its approval of maps and plans filed by the owners because it contemplated taking the property for park purposes. The Appellate Division would not allow this.
The rule is well established that all facts and circumstances which would be considered by a buyer and seller must be considered by the Court in determining the highest and best use of the subject parcels. Sparkill Realty Corp. v State of new York, 254 AD 78 (3d Dept 1938). When the condemnor deprives the citizen of his (or her) property for a public use, the former owner should have the right to prove every element that can fairly enter into the question of market value. Matter of Blackwell’s Island Ridge, 198 NY 84 (1810).
On the valuation date, if there was no condemnation, the properties would have a particular value because of their zoning. Had there not been a condemnation a willing buyer and a willing seller would have struck a deal based on the zoning. Nothing requires a condemnor to go forward with a planned project or condemnation. Therefore, there is no reason to deny the benefits of an area-wide rezoning.
One may consider the converse; a condemnation can never deprive an owner of its rights to fully develop its property in accordance with applicable zoning. Matter of Town of East Hampton (Three P. Corp.), 44 AD3d 963 (2d Dept 2007). Nor may it stop any efforts in development before a condemnation. Matter of Metropolitan Transportation Authority (Collegiate Church), 86 AD3d 314 (1st Dept 2011).
Condemnation has never been allowed to deprive an owner of the same rights enjoyed by other property owners. No owner may be denied the equal protection of the laws of this state. (NY Const., Sec. 11)
A town, for example, did not have the right to deny building permits on the grounds that there were ongoing efforts to condemn the property. Matter of Winepol v Town of Hempstead, 59 Misc2d 768 (Sup. Ct. Nassau Co. 1969, Bernard S. Meyer, J.). See also Lido Links Homes v Young, 13 Misc2d 157 (Sup. Ct. Nassau Co., 1956, Hogan, J.); Matter of Aster Agency, Inc. v Miller, 13 Misc2d 946 (Sup. Ct. Nassau Co. 1956).
In Matter of St. Morris Associates v McMorran, 35 AD2d 997 (2d Dept 1970), the Second Department held that it was wrong to defer acting on an application for curb permits because the State planned to construct an expressway. The court wrote, “the rights of a property owner to the lawful use of his property may not be indefinitely deferred upon the ground that the property might, at some future time, be required for a public use.”