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.