Opinion
April 9, 1990
Appeal from the Supreme Court, Nassau County (Di Noto, J.).
Ordered that the judgment is reversed insofar as appealed from, with costs, and it is declared that the resolution denying the plaintiff's application for a rezoning is constitutional.
In order to prove that an unconstitutional taking has occurred, a landowner must prove that the subject property cannot yield an economically reasonable return as zoned (see, de St. Aubin v Flacke, 68 N.Y.2d 66, 76-77; Spears v. Berle, 48 N.Y.2d 254, 263; Tilles Inv. Co. v. Town of Huntington, 137 A.D.2d 118, 122, affd 74 N.Y.2d 885). Conclusory testimony to the effect that the land cannot yield an economically reasonable return as zoned is insufficient (see, Matter of Village Bd. v. Jarrold, 53 N.Y.2d 254, 259; Tilles Inv. Co. v. Town of Huntington, supra). Instead, a landowner must offer proof of the market value of the property at the time of acquisition, and must also prove the current market value of the property as presently zoned (see, Matter of Village Bd. v. Jarrold, supra, at 258; Tilles Inv. Co. v. Town of Huntington, supra, at 122; Northern Westchester Professional Park Assocs. v. Town of Bedford, 92 A.D.2d 267, 272, affd 60 N.Y.2d 492; Curtiss-Wright Corp. v. Town of E. Hampton, 82 A.D.2d 551).
The record on appeal is devoid of any evidence concerning the fair market value of the property at the time of its acquisition, or of the current value of the property as presently zoned. Since the plaintiff failed to meet its burden of establishing an unconstitutional taking (see, Northern Westchester Professional Park Assocs. v. Town of Bedford, supra; Tilles Inv. Co. v. Town of Huntington, supra, at 122-123), the Supreme Court erred in declaring that the resolution denying the application to rezone the property was unconstitutional. Mangano, P.J., Thompson, Bracken and Balletta, JJ., concur.