Opinion
December 28, 1970
In a proceeding pursuant to article 78 of the CPLR to compel (1) the respondent officials of the State Department of Transportation to act upon petitioner's site development plan and to issue curb cut permits to petitioner and (2) the respondent Hudson River Valley Commission to review said plan and make findings, the appeal is from a judgment of the Supreme Court, Westchester County, dated December 30, 1969, which dismissed the petition on the merits. Judgment reversed, on the law, with $10 costs and disbursements, and respondents are directed to forthwith act upon petitioner's site development plan and the respondent officials of the State Department of Transportation are further directed to issue the curb cut permits requested by petitioner. The respondent agencies had refused to act upon petitioner's plan; and Special Term's dismissal of this proceeding was upon the ground that respondents were vested with discretion, in the premises, which they had not abused. The determination of respondents, to defer action on petitioner's application, was based upon the fact that the State plans to construct an expressway, to be known as the Hudson River Expressway, which will extend through all, or part, of petitioner's property, and that it will thus become necessary for the State to acquire this property. 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 public use ( Matter of Lido Links Homes v. Young, 13 Misc.2d 157; Matter of Colonial Estates v. Stanco, 39 Misc.2d 396; Matter of Thurman v. Snowden, 52 Misc.2d 132, revd. on other grounds 28 A.D.2d 705; Matter of Aster Agency v. Miller, 13 Misc.2d 946). Respondents were vested with no discretion to defer petitioner's rights (Hudson River Valley Compact, L. 1966, ch. 345, § 1). The equities are in favor of petitioner. There is no assurance that the expressway will ever be constructed; nor is there any assurance that, if constructed, its route will not be changed to eliminate any necessity for appropriation of petitioner's property. It would be manifestly unfair to deny to petitioner the lawful use of its property, under the circumstances, while still imposing upon it the obligation to pay taxes. Munder, Acting P.J., Martuscello, Kleinfeld, Brennan and Benjamin, JJ., concur.