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Charles v. Diamond

ELR Citation: 7 ELR 20434
360 N.E.2d 1295/41 N.Y.2d 318, (N.Y. Ct. App., 02/15/1977)

The New York Court of Appeals holds that a village's unreasonable delay in improving its sewer system, which prevents a landowner from hooking up to the municipal system, may, on sufficient proof, be an unconstitutional taking of private property without compensation. Appellee planned to construct a 36-unit apartment complex on his property. The state Department of Environmental Conservation notified him that he could not hook up his sewer to the village of Camillus sewer system until the village improved its system. Appellee sued, claiming an unconstitutional taking without compensation and damages.

Following a series of consent orders with the state beginning in 1966, the village unsuccessfully attempted to stop an administrative enforcement proceeding to establish a definite date for abating its discharge of untreated sewage. Village of Camillus v. Diamond, 76 Misc. 2d 319, 350 N.Y.S.2d 546, aff'd, 45 A.D.2d 982, 359 N.Y.S.2d 878.

An individual property owner has no right to insist that a municipality provide him with a sewer system. Here, however, the complained action is that the village sewer ordinance is being applied unconstitutionally. Municipalities have the power to remedy sanitation problems. Westwood Forest Estates v. Village of South Nyack, 23 N.Y.2d 424, 244 N.E.2d 700, 297 N.Y.S.2d 129. Reasonably limited moratoria on sewer development are permissible. Golden v. Planning Bd. of Town of Ramapo, 30 N.Y.2d 359, 2 ELR 20296 (1972). But the burdens of such restrictions cannot be placed on particular property owners. Fred F. French Investing Co. v. City of New York, 39 N.Y.2d 587, 6 ELR 20810 (1976).

It appears that the sewer problem cannot be rectified until 1980. Such a delay is justifiable only if remedial steps are of a large magnitude, the restraint is designed to alleviate a crisis condition, and steps are being taken to rectify the situation. Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 364 N.Y.S.2d 160, 323 N.E.2d 697 (1973). Also, the extent of the property owner's damage must be ascertained. The owner must be deprived of all reasonable uses. Moreover, the "reasonableness" of the police power exercise must be determined by many factors.

In this case, delay has been substantial and without explanation. The owner, however, has not come forward with proof of significant economic injury. See, e.g., Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587 (1938). Therefore, the case should be remanded to the trial court for the taking of evidence on this question.

The court affirms that part of the trial court's order requiring compliance with its consent orders with the state. If the landowner has been prejudiced by unreasonable delay, he is entitled to a declaration that the ordinance may not be constitutionally applied to him. Westwood Forest Estates, supra. Damages for a permanent loss are not available. Fred F. French, supra; Keystone Assoc. v. State, 33 N.Y.2d 848, 352 N.Y.S.2d 194, 307 N.E.2d 254; Keystone Assoc. v. Moerdler, 19 N.Y.2d 78, 278 N.Y.S.2d 185, 224 N.E.2d 700 (1967). Since the government has not directly intruded on the landowners property and no de facto taking occurred, no consequential damages are available to the owner. Fred F. French, supra. Tort liability in this context would strip a municipality of its discretion to make municipal improvements. Finally, the claim against the state is dismissed.

Order affirmed as modified.

The full text of this opinion is available from ELR (12 pp. $1.50, ELR Order No. C-1121.)

Counsel for Appellant Henry Diamond
Louis J. Lefkowitz, Attorney General; Martin H. Schulman, Ruth Kessler Toch, Stanley Fishman
Department of Law, State Capitol, Albany NY 12224
(518) 474-7330

Counsel for Appellant Village of Camillus
Roger Scott, Alexander J. Hersha
Hersha & Scot
Marine Midland Bank Bldg., Camillus NY 13031
(315) 672-8157

Counsel for Appellee William J. Charles
Victor J. Ciabotti
Dot, Setright & Ciabotti
500 Powelson Bldg., Syracuse NY 13202
(315) 422-9295

Jasen, J., for a unanimous court