New York Law Review

Tag: Tidal Wetlands Act

  • Gazza v. New York State Dept. of Envtl. Conservation, 89 N.Y.2d 603 (1997): Subsequent Purchasers and Regulatory Takings Claims

    89 N.Y.2d 603 (1997)

    A subsequent purchaser of property may bring a regulatory takings claim, but such a claim will only succeed if the regulation denies the owner economically viable use of the property.

    Summary

    Gazza sought to build a single-family home on his property, but his application was denied due to tidal wetlands regulations. He claimed the denial constituted a taking without just compensation. The New York Court of Appeals held that while a subsequent purchaser can bring a takings claim, Gazza failed to prove the regulation deprived his property of all economic value. The court reasoned that Gazza was aware of the regulations when he purchased the land, but that did not automatically bar his claim. However, because he could not demonstrate that the property retained no economic value, his takings claim failed.

    Facts

    Gazza purchased a parcel of land in 1988. The land was designated as tidal wetlands and subject to regulations under the Tidal Wetlands Act. Gazza applied to the Department of Environmental Conservation (DEC) for permission to build a single-family home on the property. The DEC denied the permit, citing the regulations protecting tidal wetlands. Gazza then filed suit, claiming the denial of the permit constituted a taking of his property without just compensation.

    Procedural History

    Gazza initially sued in Supreme Court, which ruled against him. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal to consider whether a subsequent purchaser can bring a regulatory takings claim and whether Gazza had established a taking.

    Issue(s)

    1. Whether a subsequent purchaser of property, who takes title with knowledge of pre-existing regulations restricting the use of the property, is automatically barred from bringing a regulatory takings claim.

    2. Whether the denial of a permit to build on the property constituted a regulatory taking requiring just compensation.

    Holding

    1. No, because a subsequent purchaser is not automatically barred from bringing a regulatory takings claim; the timing of the purchase is a factor to be considered.

    2. No, because Gazza failed to demonstrate that the denial of the permit deprived his property of all economically viable use.

    Court’s Reasoning

    The court acknowledged the split of authority on whether a subsequent purchaser can bring a takings claim. The court rejected a per se rule barring such claims, reasoning that it would unduly restrict the alienability of property. The court stated that while knowledge of the regulation is a factor in determining whether a taking occurred, it is not dispositive. The court emphasized the importance of analyzing whether the regulation denies the owner economically viable use of the property. Quoting from prior precedent, the court stated: “a subsequent purchaser may attack previously enacted regulations that affect the purchased property as beyond government’s legitimate police power”. The court found that Gazza failed to meet his burden of proving that the DEC’s denial deprived the property of all economic value. He did not demonstrate that the property was unsuitable for other uses or that it had no remaining market value. Therefore, his takings claim failed. Judge Wesley concurred, agreeing with the result but disagreeing with the majority’s view that a subsequent purchaser’s claim should be treated differently.

  • de St. Aubin v. Flacke, 68 N.Y.2d 66 (1986): Burden of Proof in Wetlands Taking Claims

    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”.