Michael Rikon

On appeal of a condemnation or tax certiorari case, what exactly is the appellate court standard of review? The answer is not that simple. Most decisions reviewing a valuation cause will state that since the matter before it was a bench trial, the Appellate Division may render the judgment it finds warranted by the facts, taking into account the fact that the trial court had the advantage of seeing the witnesses. Northern Westchester Professional Park Associates v. Bedford, 60 N.Y.2d 492 (1983). Stated another way, where the trial court’s findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court’s credibility determinations. Gerard v. Cahill, 194 A.D.3d 813, 815 (2d Dept. 2017).

In one condemnation case which arose as a result of a taking for the Atlantic Yards project in Brooklyn, the trial court, Justice Wayne Saitta, heard the testimony of many expert witnesses including appraisers, zoning experts, cost estimators, hotel experts, and professional engineers, and determined that a vacant land parcel on Atlantic Avenue had a reasonable probability of rezoning with a highest and best use as a hotel.

The Second Department affirmed and wrote:

Although “[i]n condemnation cases, the authority of this Court to review findings of fact after a nonjury trial is as broad as that of the trial court” and it “‘may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses’” (quoting BRK Props., Inc. v Wagner Ziv Plumbing & Heating Corp., 89 AD3d 883, 884, [2011]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499, 458 NE2d 809, 470 NYS2d 350 [1983]), “[w]here the trial court’s explanation of its award is supported by the evidence, it is entitled to deference and will not be disturbed on appeal” (Matter of Board of Commr. of Great Neck Park Dist. of Town of N. Hempstead v Kings Point Hgts., LLC, 74 AD3d 804, 806 [2010]; see Matter of Queens W. Dev. Corp. [Nixbot Realty Assoc.], 139 AD3d 863, 33 NYS3d 274 [2016]; Chemical Corp. v Town of E. Hampton, 298 AD2d at 423).

Matter of 730 Equity v. New York State Urban Development, 142 A.D.3d 1087, 1089 (2d Dept. 2016).

But we think there is another reason for deference in a valuation case and that is the special expertise of the trial court. In New York, all eminent domain and tax reduction cases are non-jury cases. In most judicial departments, there is one part which is assigned to hear these cases. In my experience, the judges assigned to hear these unique cases became experts in the law. Most courts will request and read the appraisals prior to the trial to better understand the issues.

In New York, condemnation and tax certiorari trials are limited by the information set forth in the parties’ appraisals. After the exchange of appraisals, each side may file a rebuttal report within sixty days after receipt of the document sought to be rebutted. The appraisal reports are required to contain a statement of the method of appraisal relied on and the conclusions as to value reached by the expert together with the facts, figures and calculations by which the conclusions were reached. The appraisers are also required to provide specific information regarding their comparable sales, leases and photographs of the property under review.

Upon the trial, expert witnesses are limited in their proof of appraised value to information set forth in their reports. Under the rules, the court has the ability to relieve any party of a default. It should be noted that the rule only applies to expert witnesses who are offering opinions. No report need be filed by a fact witness. In fact, the Third Department held in Faulkner v. State of New York, 247 A.D.2d 798 (3d Dept. 1998) that an expert may be permitted to testify without first submitting an expert report if the testimony is factual and does not constitute opinion evidence. In Faulkner, the issues concerned the testimony of a surveyor who testified as to square footage of the area taken.

So, this special knowledge and expertise of the trial court should also be a factor considered by the appellate court.

Apparently, deference to the trial court has its limits. A recent example is the decision by the Second Department in Matter of Town of Oyster Bay v. 55 Motor Avenue Company, __ A.D.3d ___, 2017 NY Slip Op. 08672 (Dec. 13, 2017). In that condemnation case, the trial court awarded claimant $20,700,000 which was based on a highest and best use as retail. The court reversed and remanded for a determination based on the evidence offered by the condemnor that the fair market value of the property was to be based on the use of light industrial development. The court stated:

Here, the claimants failed to establish that there was a reasonable probability that they would have been granted a special use permit to develop parcels 1 and 2 as a large-scale multi-tenant retail development in accordance with CP-1. To demonstrate a reasonable probability that they would have been granted a special use permit for a retail development at the maximum allowable density, the claimants proffered the testimony and report of their expert planner. The expert planner did not review the history of any special use permit applications to the Town Board, or reference any large-scale retail developments that were located on the vesting date in the immediate area of the subject property.

The problem with this language is that here we are not dealing with a zoning change. If a claimant asserts that the land has a reasonable probability of a zoning change, it will have the burden of proof establishing a reasonable probability. This issue is a question of fact. If the reasonable probability of a zoning change exists, it becomes a relevant factor in the determination of the value of the subject property. But the rezoning must be based on sufficient evidence, not mere speculation.

55 Motor Avenue Company did not argue a zoning change, it presented the ability to develop pursuant to a special permit. A zoning change is a determination by the legislative body. It is highly discretionary. A special permit, on the other hand, is something that has already been determined by the legislative body when they adopted the zoning law as being something that’s permissible in that zoning district. Robert Lee Realty Co. v. Spring Valley, 61 N.Y.2d 892 (1984).

While the law requires a public hearing and vote on a special permit, the burden is on opponents of permitted uses to show a significant negative impact from such development. Since the use was already contemplated, the grant of a special permit is a virtual certainty. See Matter of Village of Haverstraw (AAA Electricians), 33 Misc.3d 1232(A), aff’d 114 A.D.3d 955 (2d Dept. 2014).

We doubt this is the last word on the matter.

Michael Rikon is a partner of Goldstein, Rikon, Rikon & Houghton.