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Spears v. Berle

Citation: 9 ELR 20796
No. No. 373, 397 N.E.2d 1304/(N.Y., 10/18/1979)

The New York Court of Appeals reverses a lower court's order which directed the state Commissioner of Environmental Conservation either to issue a permit under the state Freshwater Wetlands Act for the extraction of humus and sand from privately owned wetlands or to initiate condemnation proceedings. The court first determines that the Commissioner's denial of the permit was rationally based on substantial evidence that the proposed mining activity would destroy the wetlands and was thus proscribed by the Act itself. The court then proceeds to consider whether the Act, in conjunction with the permit denial, has imposed such an onerous burden on the property that a taking has occurred. A local land use regulation will be deemed a taking if it renders private property unsuitable for any reasonable income or use and thus destroys its economic value. The challenger in such a case bears a heavy burden of demonstrating with economic evidence that the parcel as a whole would be incapable of producing a reasonable return under any permissible use. The record in this case, the court concludes, is insufficient on the taking issue and the matter must therefore be remanded for a hearing on that question.

For summaries of the briefs filed in the state court of appeals, see ELR PEND. LIT. 65623.

Counsel for Plaintiff-Respondent
William A. Glass
Goldman, Glass & Pivovar
P.O. Box 1108, Port Jervis NY 12771
(914) 856-5335

Counsel for Defendants-Appellants
Robert Abrams, Attorney General; Peter G. Crary, Shirley Adelson Siegel, Stanley Fishman
State Capitol, Albany NY 12224
(518) 474-4818

Counsel for Amicus Curiae Natural Resources Defense Council, Inc.
Laurence Rockefeller, Drayton Grant
Natural Resources Defense Council, Inc.
122 E. 42d St., New York NY 10017
(212) 949-0049