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Lemp v. Town Bd. of Islip

Citation: 7 ELR 20613
90 Misc. 2d 360/394 N.Y.S.2d 517, (N.Y. Sup. Ct., 04/01/1977)

The court declares that a town ordinance limiting construction on Fire Island ocean-front property in order to protect fragile beach ecology represents an invalid exercise of the police power under the due process clauses of the state and federal constitutions. Petitioner's acquisition of the property was conditioned upon her obtaining the requisite approvals to build a single-family dwelling upon the property. Petitioner obtained approvals and commenced construction, but the building permit was revoked, and the local planning board refused to issue a special permit because of the danger to sand dunes. Under New York procedure, petitioner could seek a declaratory ruling that the ordinance, as applied, constitutes a taking. The court distinguishes exercise of the state's eminent domain and police powers on the basis of the relative use or harm of the property to the public, with only the first giving rise to a right for compensation. The court finds that New York law puts ultimate emphasis on the rights of the property owner; when a noncompensable exercise of the police power deprives the owner of the use of his land, it is a deprivation of property rights without due process. Although the court takes judicial notice of the fragile ecology of Fire Island, the restriction here deprives the owner of any reasonable use for which the property would be suitable and is, therefore, unreasonable and a violation of due process. Under the local regulatory scheme, the Town Board may either condemn the property or grant a special permit.

Counsel for Petitioner
John J. McInerney
28 Park Ave., Bay Shore NY 11706
(516) 665-3030

Counsel for Respondents
Francis G. Caldeira, Town Attorney
Town Hall, Main St., Islip NY 11751
(516) 581-2000

Counsel for Intervenor
Gerald F. Hoffer
75 Middle Rd., Sayville NY 11782
(516) 589-2222