Posted by: Patricia Salkin | May 18, 2014

NY Appellate Court Holds Municipal Resolution that Had Effect of Excluding Farmer’s Property from Watershed Acquisition by NYC Did Not Result in a Regulatory Taking

In 2001, petitioner purchased a 58–acre dairy farm in the watershed in the Village of Andes, Delaware County. In December 2010, the Department of Environmental Conservation (“DEC”) issued a 15–year water supply permit to NYCDEP authorizing continued land and easement acquisitions by the City within the watershed. The permit included special condition No. 10 under which certain geographical areas could be excluded from acquisition by the City if a municipality promptly passed a resolution designating such locations as hamlet areas. In May 2011, respondent Andes Town Board adopted Resolution No. 31 of 2011, which excluded a certain area in the Town that encompassed petitioner’s farm from any acquisition by the City. Petitioner commenced this proceeding in July 2011 against the Board, its members and the Town Supervisor and the City seeking to annul Resolution No. 31. Petitioner alleged that respondents failed to follow proper procedures in adopting Resolution No. 31, that they acted arbitrarily and that the resolution constituted a de facto taking without just compensation. Supreme Court dismissed the petition.

On appeal the court found that Resolution No. 31 did not exceed respondents’ authority by improperly restricting ownership or transferability of petitioner’s property because towns have broad authority to regulate land use within their borders. The City voluntarily consented not to be a potential purchaser of some upstate property if the local municipalities opted to exclude the property from land acquisition by the City as part of an agreement designed to protect the watershed and save the City significant money while safeguarding the economic vitality of upstate communities. Thus the court was not persuaded by the petitioner’s argument that Resolution No. 31 effected a de facto taking of her property for which she is entitled to just compensation. Furthermore the Petitioner had since found another willing purchaser, and the resolution did not hinder the use that was being made of the property as a farming operation. Accordingly, this court affirmed the holding of the New York Supreme Court in favor of the City.

Nelson v. City of New York, 517321, 2014 WL 1807103 (N.Y. A. D. 3 Dept. 5/8/2014)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2014/517321.pdf


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