H.J.E. Real Estate v. Town Hempstead

In an action for a judgment declaring the zoning of the plaintiff's premises as C Residence illegal, unconstitutional and void, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered January 29, 1976, which, after a non-jury trial, dismissed the complaint. Judgment modified, on the law, by deleting therefrom the provision which dismissed the complaint and substituting therefor a provision declaring that plaintiff failed to sustain its burden of establishing that the ordinance, insofar as it affects the subject property, is unconstitutional and void. As so modified, judgment affirmed, with costs to defendant. The findings of fact are affirmed. (See Lanza v Wagner, 11 N.Y.2d 317, 334.) It is our opinion that the plaintiff has not met its burden of proving that the ordinance in question is confiscatory and, accordingly, unconstitutional (see Dauernheim, Inc. v Town Bd. of Town of Hempstead, 33 N.Y.2d 468). Although the plaintiff, through its witnesses, admitted that the real property in question was valued at $126,000 as it is presently zoned, it failed to adduce, for the record, the original purchase price. Accordingly, it cannot be determined on this record whether the plaintiff may obtain a reasonable return on his investment as the property is presently zoned. Plaintiff also failed to adduce dollar and cents evidence to establish that it was economically unfeasible to continue to use its property as a nursery. In view of the plaintiff's president's admission that 10% of the premises is utilized for planting, it may be said that the accessory use of selling greenery, for which the plaintiff uses its property, is permitted under the zoning ordinance (see 1 Anderson, New York Zoning Law and Practice, § 11.28, p 537). It is our opinion that whether the trial court was authorized by counsel to inspect the premises is of little importance herein. Hopkins, Acting P.J., Damiani, Rabin, Shapiro and Hawkins, JJ., concur.