Posted by: Patricia Salkin | January 19, 2015

NY Appellate Courts Finds a Reasonable Probability That Wetlands Designation Is a Regulatory Taking Under Penn Central

The City of New York condemned a 19,500 square-foot vacant parcel on Staten Island. The property had been designated “wetlands” before the current owners acquired it. Applying a Penn Central analysis, the trial court determined, and the appellate division affirmed, that it was reasonably probable that the wetlands designation was a regulatory taking. The Court said, “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.). …Considering the 82% property value diminution estimated by the City as a result of the wetlands regulations, together with the effective prohibition on development of any part of the property effectuated by the wetlands regulations, we agree with the Supreme Court that the claimants established that there was a reasonable probability that the imposition of the wetlands regulations constituted a regulatory taking of the subject property (Citations omitted).”

Editor’s note: Hat tip to Robert Thomas, Esq. at the Inverse Condemnation Blog for posting this. http://www.inversecondemnation.com ; See also, Bulldozers at Your Doorstep blog – http://eminent-domain-blog.com/appellate-division-affirms-75-increment-applicable-wetlands-taking/

New Creek Bluebelt, Phase 4 v. City of New York, No. D42904 (N.Y.A.D. 2 Dept. 11/19/2014)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2014/D42904.pdf


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