Posted by: Patricia Salkin | February 3, 2017

NY Appellate Court Finds Application of Watershed Regulations to Subdivision Application Did Not Constitute a Taking

In 2005, the claimant acquired title to an undeveloped parcel of real property in the Village and Town of Monroe, in the RR 1.5 ac zoning district, for which permissible uses included, “Single Family detached dwellings on lots of 3 or more acres in size.” In 2006, the claimant applied for approval to develop the property by subdividing it into three lots and then constructing a single-family dwelling on each lot, and included installation of a septic system for each of the three dwellings. The property was located within the Lake Mombasha watershed, and was therefore subject to watershed protection regulations promulgated by the New York State Department of Health (“DOH”) pursuant to article 11 of the Public Health Law. These watershed regulations prohibited the placement of a subsurface sewage disposal system within 300 feet of Lake Mombasha. The claimant’s subdivision application was denied by the Town Planning Board in November 2008 because the necessary septic systems would violate the watershed regulations. The landowner brought an action against the State, alleging that the application of the watershed regulations constituted a per se taking that required compensation under the Takings Clause. The Court of Claims denied landowner’s motion for summary judgment and granted summary judgment in favor of the State.
On appeal, the court found the claimant failed to establish that the subject property had suffered a complete elimination of value as a result of the watershed regulations. Here, the claimant acquired title to the subject parcel of land 85 years after the watershed regulations first went into effect. Additionally, the defendant submitted evidence that the claimant’s parcel was once joined with abutting lands that were split into separate parcels in 1989. Therefore, the court found that the right to install a septic system was never part of the “bundle of rights” the claimant acquired with title to the property and the claimant could not succeed on its takings claim. Accordingly, the court held the Court of Claims properly denied the claimant’s motion for summary judgment and dismissed the claim.
Monroe Equities, LLC v. State, 43 N.Y.S.3d 103 (2 Dept. 2016)

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