(dissenting). I am unable to agree with the conclusion reached by the majority “ that there was a de facto taking of [defendant’s] property by the city in April, 1963”. In fact, the record is devoid of any evidence upon which it could be found that a de facto taking occurred at any time. True it is, that there were various announcements made by the city regarding the prospects of redeveloping the area concerned, including a communication from the city in 1962 that negotiations for purchase of the property would be commenced in the spring of 1963. A close scrutiny of the record fails to uncover any affirmative value-depressing acts upon the part of the city which could possibly be translated into dominion or control over the property. Neither was there any interference, substan*38tial or otherwise, with claimant’s right to nse or enjoy the property at any time prior to the entry of the preliminary order of condemnation on February 16, 1967. The majority seizes upon the fact that there were a number of meetings with city officials regarding the impending condemnation. It is important to note that at none of these did the city, by its statements or actions, directly or indirectly, exercise any control over the property or even inferentially deprive the claimant of its possession, enjoyment or use of the property. We have not yet arrived at a point where expression of an intent to appropriate will constitute a de facto taking where such an announcement is unaccompanied by any act on the part of the municipality toward executing the appropriation, taking possession of or in some form controlling the use and enjoyment of the property. Indeed, it has been held that such announcements cannot be the sole basis for a de facto taking and “ there can be no direct recovery for a manifestation of an intent to take (Waller v. State of New York, 144 N. Y. 579, 599) or a threat to condemn (2 Nichols, Eminent Domain [3d ed.], § 6.1 [1]).” (Niagara Frontier Bldg. Corp. v. State of New York, 33 A D 2d 130, 132).
Neither can I agree with the majority that the acts of the city, “ so interfered with the use of the subject property that essential elements of ownership have been destroyed”. There is nothing in the record that indicates any element of ownership was destroyed by an act of the city on April 1, 1963. Bather, this was the date the defendant completed its move from the premises into its new plant. It should be noted that the defendant had been anticipating this move for several years and had appointed a committee to study the problem. Commendably, the findings of that committee were introduced into evidence by the claimant. This report revealed that while the impending condemnation was a prime (but not sole) factor in inducing the move, nevertheless it would have been mandated because the existing building was becoming inadequate to handle its increased business and, in any event, would not accommodate the new printing presses ordered well prior to the move.
The location of the subject property in this case is in the same redevelopment area as the property condemned in City of Buffalo v. Irish Paper Co. (31 A D 2d 470, affd. 26 N Y 2d 869). Certain affirmative value-depressing acts were established in Irish Paper Co. None is found here, since no statements of the city officials, admittedly made in good faith and in furtherance of their responsibilities in this project, constituted a taking.
To apply the concept of a de facto taking to the case at bar would, in my opinion, result in the imposition of an oppressive *39and unwarranted burden upon any condemning authority. In order to place the problem in proper perspective, we should point out the substantial difference between the concepts of a de facto taking and condemnation blight as they have been applied in recent holdings of our courts. It is important to bear in mind that a de facto taking' is caused by acts which result in no less than an appropriation of property, thereby requiring the owner to be justly compensated. On the other hand, condemnation blight results from affirmative value-depressing acts on the part of the municipality requiring that evidence be received of value before such acts occurred, in order to arrive at just compensation. Thus, de facto taking involves the rules of appropriation while condemnation blight involves the rules of evidence.
It is undisputed that a de facto taking can occur when the State enters onto property without filing an appropriation map (Leeds v. State of New York, 20 N Y 2d 701; Lambert v. State of New York, 30 A D 2d 582). In addition, a taking which requires compensation may result from the application of a law which deprives an owner of his property or materially affects the beneficial use and the free enjoyment of it (cf. Matter of Keystone Assoc. v. Moerdler, 19 N Y 2d 78; Forster v. Scott, 136 N. Y. 577). Absent the enactment of such a law, however, we have held that a de facto taking does not occur without either an entry upon the land or an ouster of possession (Cicci v. State of New York, 31 A D 2d 733). Because of the mere scope of present day redevelopment projects, advance notice of areas or properties scheduled for condemnation will occur in almost every case. The application of the theories advanced by the majority to cases involving facts similar to those presented here could well throttle the right of a sovereign to prepare and make public, plans for the good of the community. To put it another way, adoption of the result reached by the majority effectively penalizes the sovereign for providing appropriate advance notice to a property owner, thus denying him adequate time to make proper plans. To encourage a converse plan of operation by a municipality would but raise havoc with an owner’s rights.
We held in City of Buffalo v. Irish Paper Co. (31 A D 2d 470, affd. 26 N Y 2d 869, supra) that a property owner has a remedy where it would suffer severely diminished compensation because of acts by the city decreasing the value of the property, unless some relief was available. Where true condemnation blight is present a defendant may introduce evidence of value before such value was diminished by the “ affirmative *40value-depressing ’ ’ acts of the city. It should be noted that the problem of condemnation blight does not arise in every case despite the fact that there has been a public announcement of an impending condemnation. There must also be present, proof of affirmative acts causing a decrease in value and difficulty in arriving at a value using traditional methods.
Further distinction between that remedy and de facto taking was provided by Niagara Frontier Bldg. Corp. v. State of New York (33 A D 2d 130, supra). That case involved a claim asserted for damages resulting from an alleged “ temporary de facto appropriation ”. We there held that although tenants had vacated claimant’s building- in anticipation of the State’s announced intention to take, there could be no recovery for lost rentals because there had been no appropriation, temporary or otherwise. Significantly, we indicated that claimant should be entitled to rely on value evidence, uninfluenced by the State’s acts, on the trial of any claim resulting from the de jure taking.
It can, therefore, be seen from our holdings in Niagara Frontier Bldg. Corp., Irish, Paper Co. and Cicci that this court does not recognize a de facto taking without evidence of deprivation of use, title or possession, either by entry or by operation of law. There is no such evidence in this record. With the distinction between the two concepts in mind, neither is there any evidence requiring the application of the theory of condemnation blight. Unlike Irish Paper Co. and Niagara Frontier Bldg. Corp., there were no affirmative value-depressing acts by the city.
Because of the absence of a de facto taking in April, 1963, we must examine the record to determine whether there is sufficient evidence upon which an award can be based for the value of the property at the time of the de jure taking. The defendant offered no evidence of value in 1968 based on market data, nor did the city offer any valid appraisal evidence of 1968 values whatsoever. Defendant attempted to establish a 1968 value using the reproduction cost method, but as this building was not a specialty, this approach was improper (Guthmuller v. State of New York, 23 A D 2d 597). Furthermore, the income capitalization approach used by defendant was insufficient since there was no evidence or estimate of operating expenses and fixed charges (Svoboda v. State of New York, 28 A D 2d 1056). There being no appraisal testimony or any legal evidence of value upon which an award could be based, either at the time of the entry of the preliminary order of condemnation or at the time of trial, no new findings can be made. We are unable to *41fashion an award from the paucity or complete lack of acceptable value evidence.
The judgment should be reversed and a new trial ordered.
Marsh, J. P., and Henry, J., concur with Wither, J.; Gabrielli, J., dissents in opinion, in which Bastow, J., concurs.
Judgment modified on the law and facts in accordance with the opinion by Wither, J., and as modified affirmed, with costs to J. W. Clement Company.
Order entered January 22, 1969 modified in accordance with the opinion by Wither, J., and as modified affirmed.
Second order entered January 22,1969 modified in accordance with the opinion by Wither, J., and as modified affirmed, and matter of extra allowance and statutory costs remitted to trial court for determination in accordance with the opinion.