HBP Associates v. County of Orange

—In an eminent domain proceeding, the County of Orange appeals from a judgment of the Supreme Court, Orange County (Palella, J.), dated February 2, 1999, which is in favor of the petitioner and against it in the principal sum of $1,351,010, plus an additional allowance of $111,537 pursuant to EDPL 701. Ordered that the judgment is affirmed, with costs. The determination of the highest and best use of a property must be based upon evidence of a use which reasonably could or would be made of it in the near future (see, Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535, 536; Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280; Matter of City of New York v Estate of Levine, 196 AD2d 654; Matter of Consolidated Edison Co. v Neptune Assocs., 190 AD2d 669). A “use which is no more than a speculative or hypothetical arrangement in the mind of the claimant may not be accepted as the basis for an award” (Matter of City of New York [Shorefront High School-Rudnick], 25 NY2d 146, 149; Matter of City of New York [Broadway Cary Corp.], supra, at 536). Applying these principles, the petitioner satisfied its burden of proving that the highest and best use of its property was for a shopping center with so-called “pad sites.” The appellant’s remaining contentions are without merit. Mangano, P. J., Ritter, S. Miller and H. Miller, JJ., concur.