de St. Aubin v. Flacke, 68 N.Y.2d 66 (1986)

In a regulatory taking claim involving tidal wetlands restrictions, the landowner bears the burden of proving that the regulation prevents any reasonable economic use of the property, including demonstrating that there is no reasonable probability of obtaining a variance or zoning change that would permit such use.

Summary

Petitioners, landowners of tidal wetlands, were denied a permit to develop their property due to environmental regulations. They claimed this denial constituted a taking without just compensation. The New York Court of Appeals held that while the claim was ripe for review, the lower courts erred by placing the burden on the state to prove a reasonable probability of rezoning. The court clarified that the landowner bears the burden of proving that the regulation prevents any reasonable economic use of the property, including demonstrating that there is no reasonable probability of obtaining a variance or zoning change.

Facts

Petitioners owned 103 acres of land, 81 of which were designated as tidal wetlands by the Commissioner of Environmental Conservation. They sought a permit to fill the wetlands and build 607 single-family residences. The permit was denied. The Town of Hempstead had zoned the properties as Residence B, permitting only single-family dwellings on lots of at least 6,000 square feet. Prior to the Tidal Wetlands Act, petitioners’ application to rezone the property for multifamily development had been denied. After the denial of the wetlands permit, the state proposed alternative development plans involving smaller lot sizes or cluster zoning of the uplands.

Procedural History

Petitioners filed suit challenging the permit denial and claiming a taking. Special Term upheld the permit denial but found a taking, ordering the state to either grant the permit or commence condemnation proceedings. The Appellate Division affirmed this decision. The New York Court of Appeals granted leave to appeal.

Issue(s)

1. Whether petitioners’ claims, instituted before petitioners had sought and been denied a variance or rezoning of the properties by the Hempstead Town Board, are ripe for judicial review?
2. Whether the courts below erred in placing the burden on respondent to prove that there existed a reasonable probability that petitioners could obtain a rezoning of the subject parcels?
3. Whether petitioners had that burden, does the evidence in the record support their claim?

Holding

1. Yes, the matter is ripe for review, because the Commissioner’s decision was final.
2. Yes, the courts below erroneously shifted to respondent the burden of proving that there was a reasonable probability of rezoning.
3. No, because the burden of proof should have been on petitioners, and the record doesn’t conclusively establish they met it.

Court’s Reasoning

The Court of Appeals reasoned that while ripeness generally requires a final decision from all relevant regulatory bodies, it would be impractical to force the landowners to seek relief from every conceivable agency. The court acknowledged the difficulty that landowners face when regulated by both state and local governments. However, to succeed on a taking claim, a landowner must prove that the regulation deprives them of any reasonable economic use of the property. This includes showing that there is no reasonable probability of obtaining a variance or zoning change from the town that would allow such use. The court emphasized the heavy burden on the landowner to overcome the presumption of constitutionality. The court found that the lower courts erred by placing the burden of proof on the State to show that a zoning change was likely. The burden is on the landowner to demonstrate that no reasonable use is possible, including showing the improbability of a zoning change. The court noted that the landowners conceded that one request for cluster zoning (after a change in zoning laws) was granted for a parcel only five miles from the parcel in question. The court also said that the landowner could wait until the state condemned the land and then petition for a zoning variance, which could allow the landowner to potentially “profit from the condemnation of the wetlands and still retain the full potential value of the uplands.” The court remanded the case for a new hearing with the burden of proof properly placed on the petitioners. As the court stated, “If the courts were forced to look to the property as it is, rather than as it could be [landowners] could frustrate any land use restrictions”.