Loujean Properties, Inc. v. Town Board of Oyster Bay

—In an action for a judgment declaring that the resolution of the defendant Town Board of the Town of Oyster Bay, dated October 6, 1987, denying the plaintiffs application for a rezoning is unconstitutional, originally denominated a proceeding pursuant to CPLR article 78, the defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Di Noto, J.), entered August 12,1988, as made the declaration in favor of the plaintiff. Ordered that the judgment is reversed insofar as appealed from, with costs, and it is declared that the resolution denying the plaintiffs 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 NY2d 66, 76-77; Spears v Berle, 48 NY2d 254, 263; Tilles Inv. Co. v Town of Huntington, 137 AD2d 118, 122, affd 74 NY2d 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 NY2d 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 AD2d 267, 272, affd 60 NY2d 492; Curtiss-Wright Corp. v Town of E. Hampton, 82 AD2d 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 pres 798 ently 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.