Palazzolo v. State

No. 98-333 (746 A.2d 707) (R.I. February 25, 2000)

ELR Digest

The court holds that a landowner could not bring a claim alleging that a state resources management council's denial of the landowner's application to fill 18 acres of coastal wetlands constituted a taking of that property. The court first holds that the landowner's claim is not ripe for review. Although the landowner claimed that his property was taken when he was denied permission to develop a 74-lot subdivision, he never applied for permission to develop such a subdivision. His 1966 and 1985 applications sought to fill the wetlands so he could construct a beach club. His 1963 and 1983 applications sought permission to fill the wetlands, with no statement describing what he intended to do with the land when it was filled. In fact, during the hearing on the 1983 application, the landowner specifically stated that he had no plans to build on the filled land. Therefore, because the landowner has not applied for permission to develop a 74-lot subdivision, he has not received a final decision regarding the application of the regulations to the property at issue. Moreover, the landowner never sought permission for less ambitious development plans. The landowner has not sought permission for any other use of the property that would involve filling substantially less wetlands or that would involve development of only a portion of the parcel.

The court next holds that although its determination that the landowner's claim is dispositive of the case, there was no per se taking of the landowner's property. The landowner had not been deprived of all beneficial use of his property. Although the value of the wetlands is significantly lower than the profit that the landowner could have earned from filling and developing the wetlands, the mere fact that the landowner may not have received the anticipated return on his investment does not render nugatory the remaining value of the land. Further, when the landowner became owner of the land at issue, state laws and regulations already substantially limited his right to fill wetlands. Hence, the right to fill wetlands was not part of the title he acquired. The court next holds that there was no regulatory taking. Again, when the landowner took possession of the land at issue, there were already regulations in place limiting the landowner's ability to fill the wetlands for development. In light of these regulations the landowner could not reasonably have expected that he could fill the property and develop a 74-lot subdivision.

The full text of this decision is available from ELR (16 pp., ELR Order No. L-184).

Counsel for Plaintiff
John B. Webster
Webster & Destefano
875 Centerville Rd., Warwick RI 02886
(401) 822-1300

Counsel for Defendants
Michael Rubin, Ass't Attorney General
Attorney General's Office
150 S. Main St., Providence RI 02903
(401) 274-4400

[30 ELR 20420]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]