Posted by: Patricia Salkin | February 12, 2017

NY Appellate Court Affirms Denial of Takings Claims Against Town

The owner of a vacant property, located at the end of a private road traversing a bridge in the Town of Wappinger, whose application for a building permit to construct a new house on the property was denied, brought an action against the Town of Wappinger, town’s code enforcement officer of the town, and the town zoning board of appeals, seeking a declaration that state law and an analogous local code provision requiring legal access to the property did not apply to the proposed construction. The Town denied the application on the ground that there was no legal access to the property as required by Town Law § 280–a, and an analogous local code provision, Code of the Town of Wappinger § 240–20, since the road and the bridge were in disrepair and virtually impassable. The lower court denied the owner’s motion for summary judgment and granted defendants’ cross motion for summary judgment and determined that the proposed construction of a new dwelling on the property in plaintiff’s permit application was governed by Town Law § 280–a(1).

On appeal, the court found that, contrary to the plaintiff’s contention, the application of the statute did not produce a result that was absurd or unjust or at odds with its facially evident purpose. The court determined that the plain language of section 280–a was unambiguous and, therefore, there was no basis to consider extrinsic materials to determine the legislature’s intent in enacting the statute. It further found that the legislative history did not support plaintiff’s contention that his proposed construction was excluded from the intended purposes of the statute. Moreover, the court held that the plaintiff failed to make a prima facie showing that the application of Town Law § 280–a, deprived him of a vested right to construct the new house. As such, plaintiff could not show damages for a categorical regulatory taking based on the denial of all economically beneficial use of the property without just compensation.

Accordingly, the court remitted the matter to the Supreme Court, Dutchess County, for a declaration that the provisions of Town Law § 280–a and Code of the Town of Wappinger § 240–20 applied to the proposed construction of a dwelling on the subject property.

Kellner v. Town of Wappinger, 42 N.Y.S.3d 326 (2 Dept. 12/7/2016)


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