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Gazza v. New York State Dep't of Envtl. Conservation

ELR Citation: 28 ELR 20053
Nos. 10, 679 N.E.2d 1035/89 N.Y.2d 603, (N.Y., 02/18/1997)

The court holds that a state environmental agency that denied a landowner's request for setback variances from wetlands regulations to build a single-family home on his property did not effect an unconstitutional taking. The court first holds that any claim the landowner had that his application was not decided in accordance with agency regulations must fail. The state environmental agency's denial of the setback variances was supported by substantial evidence. The court next holds that the restrictions did not constitute an unconstitutional taking requiring compensation. Although the permit application was entitled to due consideration, the landowner's claim that the denial of his variance was a taking must fail, because he never owned an absolute right to build on his land without a variance. Since the enactment of the wetland regulations, the only permissible uses for the subject property were dependent on those regulations which were a legitimate exercise of police power. The relevant property interests owned by the landowner are defined by those state laws enacted and in effect at the time he took title. They are not dependent on the timing of the state action pursuant to such law.

Although the court's analysis of the landowner's title is dispositive, the court then notes that the takings claim would still be infirm under an alternative analysis. The protection of New York's tidal wetlands is a legitimate governmental purpose and restrictions regarding the amount of setback from the edge of the wetlands for building are reasonably related to that purpose. The economic value of the property had not been extinguished, because it could still be used for recreational purposes. And the landowner's reasonable expectations were reflected by his consideration of the inherent limitations on the property when he made the purchase offer for thousands less than its worth without the restrictions. Moreover, any burden resulting from the variances' denial would not rise to the level of a per se taking. Rather, the alleged diminution in value and limitation of property uses caused by the environmental regulations fall well within constitutional boundaries.

Counsel for Appellant
Stephen R. Angel
Esseks, Hefter & Angel
108 E. Main St., Riverhead NY 11901
(516) 369-1700

Counsel for Respondent
Gregory J. Nolan
New York State Department of Environmental Conservation
50 Wolf Rd., Albany NY 12233
(518) 457-7821