Glennon v. State , 1972 N.Y. App. Div. LEXIS 3120 ( 1972 )

Judgment unanimously affirmed, with costs. Memorandum: We affirm the award made by the trial court of $24,840 for 4.1 acres of unimproved land in the Town of Chili zoned residential E which was totally appropriated by the State. We note, however, that the trial, court’s valuation of $3,000 per acre made upon claimant’s comparables, all of which had an enhanced value due to an imminent zoning change not properly applicable to land zoned residential E was error (Matter of City of New York [A. & W. Realty Corp.], 1 N Y 2d 428, 433). and it was also error to increase this figure by 100% because of the possibility of securing a zoning change to permit multiple residences without offering any explanation or reason for this percentage enhancement. Such increment ascribed to a reasonable probability of a zoning change must have a basis in the evidence (South Path Realty Corp. v. State of New York, 35 A D 2d 896). We conclude, however, that claimant’s comparables indicate an adjusted price per acre of $8,000, reflecting the valve of residential land enhanced by the possibility of a zoning change, provided sufficient proof to support the trial court’s award. Such comparables are proper so long as they are adjusted to “ reflect a diminished figure for the fact that the rezoning has not actually been accomplished ” (Yochmowitz v. State of New York, 25 A D 2d 930, mot. for lv. to app. den. 18 N Y 2d 579). Thus, while the probability of an imminent zoning change may be considered in valuing the property, it “ necessarily requires a discount from full commercial value” (Dennis v. State of New York, 24 A D 2d 924, 925; Masten v. State of New York, 11 A D 2d 370, affd. 9 N Y 2d 796). (Appeal from judgment of Court of Claims in claim for damages for permanent appropriation.) Present — Marsh, J. P., Moule, Cardamone and Henry, JJ.