NY Appellate Courts Finds a Reasonable Probability that NYC Wetlands Designation Is a Regulatory Taking

Don’t miss the Law of the Land post on New Creek Bluebelt, Phase 4 v. City of New York, No. D42904 (N.Y.A.D. 2 Dept. 11/19/2014): NY Appellate Courts Finds a Reasonable Probability That Wetlands Designation Is a Regulatory Taking Under Penn Central. In New Creek Bluebelt, although the claimants proved only an 82% diminution of value (“a diminution which, standing alone, is within the range generally found to be insufficient to constitute a regulatory taking”), 

“the parties agree[d] that, because of the wetlands regulations, it is highly improbable that the New York State Department of Environmental Conservation would issue a permit to develop the property in accordance with the applicable R3-1 zoning, which allows for attached and semi-attached one- and two- family dwellings, and that, accordingly, the highest and best use of the property is to leave it undeveloped and vacant. Thus, although the purpose of the wetlands regulations benefits the public good by providing flood prevention and mitigation, the wetlands regulations effectively prevent any economically beneficial use of the property (see id.).”

Thus, the court agreed with the trial court that the 82% property value diminution together with the effective prohibition on development of any part of the property was sufficient to establish a reasonable probability that the imposition of the wetlands regulations constituted a regulatory taking of the property.

For more on this opinion, check out the Inverse Condemnation Blog post by Robert H. Thomas, Esq., and the Bulldozers at Your Doorstep blog, by counsel for the prevailing property owners.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s