Ambler, Irene Herter, and brother Albert J. Burns, defendants, are the heirs of Edmund Burns, deceased, and as such became the owners of a rectangular parcel of real estate in the city of Detroit, Michigan, consisting of the north 3 feet of lot 42, and all of lots 43 and 44 of block 13 of the subdivision of part of the Meldrum and Beaufait farms. The property is located at the southwest corner of Meldrum and east Lafayette avenues, fronting The lots, as laid out in the subdivision plat, front on Meldrum avenue.
There is a two-story brick building at the corner of Meldrum and Lafayette avenues. West of this building and also fronting on Lafayette avenue are two frame houses each one story in height and also one frame house two stories in height. At the extreme southwest corner of the property, there is a barn and 20 feet or more north of it there is a two-story barn that will house two cars.
East of the latter barn is still another one-car barn.
There is also some unoccupied space in the middle of the property. The property adjoins an alley on its west side. The various buildings on the property are mainly on the north side of the property, the larger portion of them being on lot The record does not show what value, if any, was placed on a small amount of vacant property, most of which was appurtenant to the buildings, but out of which possibly one very small building lot might be carved.
The attorney for the defendants concedes that his clients attempted to divide the property, that it could not properly be done because of the difficulty in dividing the property among six parties. A circuit court commissioner, after taking testimony on reference, found that the buildings were so situated and of such varying values that it was impossible to divide the property into equal parcels among the six heirs. He recommended that the real estate be sold and the proceeds divided. The circuit judge confirmed the report. The sale has not yet been confirmed because of the appeal by defendants.
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Please upgrade your browser. Site Navigation Site Mobile Navigation. For Sale. City of New Rochelle , Misc. In Vangellow v.
New York Law Journal
City of Rochester Misc. In denying motions for summary judgment by all parties to this action, Justice G. Without undertaking to completely define the limits within which one's use of his land may properly be restricted by the ordinances and statutes here considered, it seems to me that if a property holder, who in good faith wishes to improve his property, is thereby prevented from devoting the property to its best and most profitable use without sustaining substantial damage, the municipality at that time must either acquire the land for the proposed street or permit the property holder to improve the property to the extent reasonably necessary to prevent such damage.
I find, as testified by one of defendant's experts, that plaintiffs' property is in one of the highest valued land areas in the City of Rochester. The area contained in the feet proposed widening constitutes I find, as testified by one of defendant's experts, that the feet setback will be of no aesthetic benefit to plaintiffs' proposed building. If plaintiffs are required to set their building back, then for all practical purposes there has been a taking of the feet strip since once the building is erected, this area upon which plaintiffs are obliged to pay taxes, will be of no apparent practical or economic value.
I find that this factor alone will substantially damage plaintiffs.
Presently Court Street has one-way eastbound traffic. If the proposed building is set back 14 feet, a presently existing church on the southeast corner of Court Street and Clinton Avenue extending to the present south line of Court Street will, to some extent, obstruct the view of the proposed building, and I find that this circumstance will, to some extent, depreciate its value. After the commencement of this action and before the trial the skating rink on the R. Plans were then drawn for a building complying with the feet setback and incorporating auditorium, gymnasium and other facilities made necessary by the destruction of the rink.
This proposed building, the southerly line of which was to be 10 feet north of the south line of the combined properties, provided for 11 stories. The structure originally proposed was 10 stories in height. I find that, aside from the additional construction made necessary by the destruction of the rink, the later proposed building because of its additional height will cost substantially more to construct and maintain. I further find that this building will afford substantially less rental area with consequent less net rental income than the story structure originally proposed.
The city contends and I find that a structure consisting of the story building originally planned and the addition provided in the second plan can be built within the area remaining after the setback. By so doing, however, the south line of the building would extend to the south boundary of the combined properties.
Such a solution would expose the plaintiffs to the possibility of a structure being erected on the north line of the property adjoining on the south, reducing or eliminating access to light and air, a circumstance which I find would depreciate the value of the building. The defendant also produced evidence that the originally planned story building could be constructed within the setback limit provided permission were obtained from the city to have the portion of the building above the first floor overhang the proposed street bed by four feet. In so doing it would be necessary to eliminate a patio on the north side of the building proposed in the original plans.
There is no present assurance that the city would grant such permission and the Board of Appeals which may have the authority to do so, did not see fit to advance such a proposal.
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In any event, I do not believe that the plaintiffs may reasonably be required to construct a building, nine stories of which will overhang the public sidewalk, in the event Court Street is eventually widened. I am aware of and sympathetic with the defendant's problem and do not doubt that the proposed widening of Court Street is presently desirable and may eventually become necessary.
It seems to me elementary, however, that the expense of providing municipal services should be borne equitably equally. The burden here imposed on plaintiffs is not such. Plaintiffs are entitled to judgment, with costs 1 declaring that to the extent that their application prevents the plaintiffs from constructing the building described in the complaint within the area of the proposed Court Street widening, section 35 of the General City Law, the official map or plan of the City of Rochester and the ordinances establishing it take plaintiffs' property for public use without just compensation and are unconstitutional and void, and 2 directing that upon presentation of plans for the building described in the complaint with such modifications and additions as the destruction of the rink require, which otherwise comply with defendant's ordinances and regulations, defendant issue to plaintiffs or either of them the necessary permits for construction.