Opinion
December 12, 1972
Appeal from the Court of Claims.
Present — Marsh, J.P., Moule, Cardamone and Henry, JJ.
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 value 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).