Lemp v. Town Board of Islip

(90 Misc. 2d 360, 394 N.Y.S.2d 517) (N.Y. Sup. Ct. April 1, 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 Petitioner obtained approvals and commenced construction, but the building permit was revoked, and the local planning board refused to issue a special permit because of the danger to sand dunes.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

[7 ELR 20614]

LEON D. LAZER, Justice.

In this proceeding against the Town Board of the Town of Islip and the Director of its Building Department, the ultimate relief sought by petitioner is permission to construct a one-family dwelling on her oceanfront property at Fair Harbor on Fire Island. Her 80 by 80 foot parcel lies in the Ocean Front Dune District AAAB (Islip Code, Article VA) and was acquired under a contract conditioned upon her obtaining the requisite approvals to build a single-family dwelling upon it. After she obtained a moratorium permit from the State Environmental Conservation Department, approval of waste disposal facilities from the County Health Department and a building permit from the Town Building Department, petitioner closed title and commenced construction of the dwelling. The Building Department then revoked the building permit on the ground that it had been issued without the Town Board approval required for such construction in the Ocean Front Dune District under section 68-59.3 of the Islip Code.

The Ocean Front Dune District ordinance provides in pertinent part:

"§ 68-59.1. Permitted uses.

No structure shall be erected or used or occupied except as stair, lookout platform or fence designed to hold or increase the dune. The purpose of this restriction is to preserve the ecology of the dunes and grasses and to safeguard life and property on the barrier beach known as 'Fire Island.'"

Section 68-59.3 empowers the Town Board to issue a special permit in the event "any owner of real property shall be unable to build upon his property because of the requirements of the Oceanfront Dune District . . ." The special permit procedure entails an application to the Planning Board, the recommendation of that body to be followed by a public hearing by the Town Board "to approve the proposals of the Planning Board" or to approve with or without conditions one of the alternatives offered by the applicant or a combination of "any of the above." The Town Board is required to state in writing its reasons "for the approval or for the conditions imposed" and its decision is declared to be reviewable in an Article 78 proceeding. The ordinance contains no standards to guide either board in making the necessary determinations. Finally, subsection B of section 68-59.3 provides:

"B. In the event a court of competent jurisdiction shall find that, unless the application is granted in one (1) of the forms proposed by the applicant, the final decision of the Town Board constitutes a taking, the Town Board may, within a time specified by the court, elect to:

(1) Institute condemnation proceedings to acquire the applicant's land in fee by purchase at fair market value.

(2) Approve the application with such lesser restrictions and conditions as may be imposed by the court.

(3) Approve the application as presented to the Town Board."

The instant ordinance is distinctly similar to section 24-0705, subd. 6 of the Environmental Conservation Law (the Freshwater Wetlands Act) which provides that if a court finds that the action taken with respect to as application for a permit constitutes a taking without just compensation the court may, at the election of the Commissioner of Environmental Conservation, set aside the order or require him to condemn the property.

When petitioner's building permit was revoked, she applied to the Planning Board for a special permit but that body recommended that the application be denied because construction of dwellings was not permitted in the District and because "no construction should occur in the dune district until completion of the [National] Seashore Master Plan." After a public hearing, the Town Board denied the application because "the erection of a house within the Dune District shall bring irreparable harm to the primary dune and, therefore, endanger not only the house to be erected, but also those residences both adjacent to and to the north of the proposed residence."

In this proceeding, petitioner has combined in a single petition requests for certiorari relief under Article 78 of the CPLR directing that her application be granted; or, in the alternative, a declaratory judgment declaring the ordinance involved to be unconstitutional or unconstitutional as it affects petitioner's property and directing the issuance of a building permit; or a judgment declaring that the Board and the Building Department be estopped from cancelling the building permit previously issued to her. A neighboring property owner has intervened in the proceeding and contends (orally and by letter) that petitioner is not entitled to relief, the hardship having been self-inflicted when she purchased with knowledge of the building prohibition. Intervenor further argues that, if this view is rejected, the Town Board must be ordered to condemn the property rather than issue a permit in view of its prior determination concerning irreparable harm and danger.

Certiorari Relief Under Article 78

The approval or denial of a special permit is deemed an administrative function to the extent that such action, even when taken by a legislative body, is subject to review in an Article 78 proceeding (Mobil Oil Corporation v. City of Syracuse, 52 A.D.2d 731, 381 N.Y.S.2d 924). Where the legislative body has reserved the power to grant or deny special permits, it need not articulate standards which would guide or limit its exercise of such power (Green Point Sav. Bank v. Board of Z. Appeals, 281 N.Y. 534, 24 N.E.2d 319; Larkin Co. v. Schwab, 242 N.Y. 330, 151 N.E. 637). Nevertheless, relief in the form of an order in certiorari is not available to the petitioner. In the absence of statutory standards to guide its action on a special permit, the power of a Town Board is not unlimited and its decision must be based upon findings which disclose the basis for its action (T.J.R. Enterprises, Inc. v. Town Board of Town of Southeast, 50 A.D.2d 836, 376 N.Y.S.2d 586; Dun roamin Corp. v. Larkin, 11 A.D.2d 737, 204 N.Y.S.2d 662) and which are supported by substantial evidence (Adams Holding Corporation v. Spitz, 17 A.D.2d 853, 233 N.Y.S.2d 486). The instant record is devoid of any findings to support the Town Board's conclusion concerning irreparable harm and damage. Thus, relief under Article 78 would necessarily be limited to a remand for further findings (see Kadish v. Simpson, App.Div., 390 N.Y.S.2d 450; Greenburgh Shopping Ctr. v. Town of Greenburgh, 21 A.D.2d 692, 250 N.Y.S.2d 464), an unnecessary course here in view of the availability of a declaratory judgment remedy.

Declaratory Judgment Relief

The constitutional issue is cognizable in the instant proceeding because it is no longer the rule that a party cannot, in the same proceeding, rely upon a statute or retain benefits thereunder and attack its constitutionality (Kovarsky v. Housing Development Adm., 31 N.Y.2d 184, 335 N.Y.S.2d 383, 286 N.E.2d 882). Neither is the form of the action dispositive (see CPLR 103). The court may treat an Article 78 proceeding as an action for declaratory judgment (see, e.g., Hoffman v. Poston, 49 A.D.2d 316, 374 N.Y.S.2d 774) or vice versa (see Board of Education of Cent. H.S. Dist. No. 2 v. Allen, 25 A.D.2d 659, 268 N.Y.S.2d 182) and special proceedings and actions may be consolidated (In re Elias, 29 A.D.2d 118, 286 N.Y.S.2d 371). The intervenor's contention that petitioner is not entitled to relief because she purchased the property with notice of the building prohibition is meritless. Such notice does not bar an owner from testing the validity of an ordinance as it applies to her property (Vernon Park Rlty. v. City of Mount Vernon, 307 N.Y. 493, 121 N.E.2d 517). The instant question is whether the ordinance, as applied, meets constitutional muster or whether, as petitioner asserts, it constitutes a "taking."

[7 ELR 20615]

Environmental Protection and Property Rights — The Coming Collision

Zoning is an aspect of the police power asserted for the general welfare (Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427). The fundamental difference between an exercise of the police power and eminent domain is that the state takes property by eminent domain because it is useful to the public and under the police power because it is harmful; the former recognizes a right to compensation while the latter on principle does not (see Freund, The Police Power § 511 [1904] at 546-47). "Where government acts in its enterprise capacity, as where it takes land to widen a road, there is a compensable taking. Where government acts in its arbitral capacity, as where it legislates zoning or provides the machinery to enjoin noxious use, there is simply noncompensable regulation." (Lutheran Church in America v. City of New York, 35 N.Y.2d 121, 129, 359 N.Y.S.2d 7, 14, 316 N.E.2d 305, 310).

This basic dichotomy has become the basis for the upholding of severe land use restrictions enacted for environmental protection purposes in some jurisdictions. In Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761, the validity of a county wetlands ordinance adopted pursuant to shoreland regulations enacted by the state was upheld by the Wisconsin Supreme Court against a challenge by property owners who alleged that the restrictions constituted a taking without compensation. The case, the court declared, "causes us to reexamine the concepts of public benefit in contrast to public harm and the scope of an owner's rights to use his property. In the instant case, we have a restriction on the use of a citizen's property, not to secure a benefit for the public, but to prevent a harm from the change of the natural character of the citizen's property" (201 N.W.2d at 767-68). "The ordinance," it was concluded, "does not create or improve the public condition but only preserves nature from the dispoilage and harm resulting from the unrestricted activities of humans" (201 N.W.2d at 771; see also Consolidated Rock Products Co. v. City of Los Angeles, 57 Cal.2d 515, 20 Cal. Rptr. 638, 370 P.2d 342, app. dism. for want of substantial federal question, 371 U.S. 36, 83 S. Ct. 145, 9 L. Ed. 2d 112 [1962]; Potomac Sand & Gravel Co. v. Governor of Maryland, 266 Md. 358, 293 A.2d 241 [1972]; Turnpike Realty Company v. Town of Dedham, 362 Mass. 221, 284 N.E.2d 891 [1972], cert. den., 409 U.S. 1108, 93 S. Ct. 908, 34 L. Ed. 2d 689 [1973]).

In this state, the ultimate and dispositive confrontation between environmental legislation and property rights has not reached the Court of Appeals in a modern context although the Tidal Wetlands Act (Environmental Conservation Law, Art. 25) is a potential arena for such a determination. While the prohibitory regulations of the Commissioner of Environmental Protection have not yet taken effect (see Environmental Conservation Law §§ 25-0201 and 25-0302), the constitutionality of the moratorium permit provisions (Environmental Conservation Law § 25-0202) is the subject of current litigation (see Russo v. N.Y. State Dept. of Environ. Conser., App.Div., 391 N.Y.S.2d 11).

The most recent significant pronouncement of the Court of Appeals relative to the exercise of the police power to regulate the use of private property is to be found in Fred F. French Inv. Co., Inc. v. City of New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5, 350 N.E.2d 381, app. dsmd __ U.S. __, 97 S. Ct. 515, 50 L. Ed. 2d 602 (1977) (see also Charles v. Diamond, 41 N.Y.2d 318, 392 N.Y.S.2d 594, 360 N.E.2d 1295, [decided Feb. 15, 1977]) where the issue was not environmental legislation per se but the efforts of the City of New York to preserve open space via a zoning amendment which classified certain private parks as a special park district and in return gave the owner transferable development rights. In Fred F. French, the court eschewed the metaphorical use of the language of eminent domain (e.g., "taking" and "confiscatory") upon the ground that the gravamen of a constitutional challenge to a regulatory measure is that it is an invalid exercise of the police power under the due process clause. Reaffirming the traditional doctrine enunciated in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L.Ed. 322 (1922) and elaborated in Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962), the court analyzed the constitutional issue as follows:

"What is an 'unreasonable' exercise of the police power depends upon the relevant converging factors. Hence, the facts of each case must be evaluated in order to determine the private and social balance of convenience before the exercise of the power may be condemned as unreasonable (citations omitted).

A zoning ordinance is unreasonable, under traditional police power and due process analysis, if it encroaches on the exercise of private property rights without substantial relation to a legitimate governmental purpose. A legitimate governmental purpose is, of course, one which furthers the public health, safety, morals or general welfare. (Citations omitted). Moreover, a zoning ordinance, on similar police power analysis, is unreasonable if it is arbitrary, that is, if there is no reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end (citations omitted).

Finally, and it is at this point that the confusion between the police power and the exercise of eminent domain most often occurs, a zoning ordinance is unreasonable if it frustrates the owner in the use of his property, that is, if it renders the property unsuitable for any reasonable income productive or other private use for which it is adapted and thus destroys its economic value, or all but a bare residue of its value (citations omitted). (39 N.Y.2d at 596; 385 N.Y.S.2d at 10, 350 N.E.2d at 386).

This approach places the ultimate emphasis on the rights of the property owner (see 1 Rathkopf, The Law of Zoning and Planning, 4th Ed. at 7-31) despite the fact that the test is characterized by the court in terms of a "balance of convenience." It has in the past been adhered to in this state not only where, as in Fred F. French itself, the purpose of the restriction was clearly to provide a public "benefit" (see also Lutheran Church in America v. City of New York, supra [landmark preservation]; Vernon Park Rlty. v. City of Mount Vernon, supra [land use restricted to parking lot]), but also in those cases where the restriction arguably prevented a public "injury" (see, e.g., Salamar Builders Corp. v. Tuttle, 29 N.Y.2d 221, 325 N.Y.S.2d 933, 275 N.E.2d 585 [pollution control]; Harbor Farms, Inc. v. Nassau Cty. Plan. Com'n, 40 A.D.2d 517, 334 N.Y.S.2d 412 [pollution control]; King v. Incorporated Village of Ocean Beach, 207 Misc. 100, 136 N.Y.S.2d 690, aff'd, 286 App.Div. 850, 143 N.Y.S.2d 637 [protection of beach and dune area]; see also Goldblatt v. Town of Hempstead, supra; Pennsylvania Coal Co. v. Mahon, supra). In Lutheran Church the court cited with approval a 1963 decision of the New Jersey Supreme Court (Morris County Land Inv. Co. v. Parsippany-Troy Hills Township, 40 N.J. 539, 193 A.2d 232) which invalidated a flood basin zoning ordinance as a taking of private property without compensation.

Although in Fred F. French (and Lutheran Church) the Court of Appeals recognized that a police power regulation to prevent public harm is not compensable, it reiterated the traditional position that when such a regulation deprives the owner of the use of his land, it "amounts to deprivation or frustration of property rights without due process of law and is therefore invalid" (39 N.Y.2d at 594, 385 N.Y.S.2d at 8, 350 N.E.2d at 385). Thus it appears that at this point in New York's jurisdical history, the balance remains in favor of private property rights and therefore the instant case must be decided in accordance with the traditional precepts which are the foundation of that balance (see, e.g., Vernon Park Rlty. v. City of Mount Vernon, supra; Shepard v. Village of Skaneateles, 300 N.Y. [7 ELR 20616] 115, 89 N.E.2d 619; Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587; Eaton v. Sweeny, 257 N.Y. 176, 177 N.E. 412).

Petitioner's Right to Relief

Under the traditional rule, the first inquiry relates to the reasonableness of the Islip ordinance which contains the following statement of purpose:

"The purpose of this restriction is to preserve the ecology of the dunes and grasses and to safeguard life and property on the barrier beach known as 'Fire Island'" (§ 68-59.1).

Judicial notice must be taken of the fragility of the ecology of Fire Island, including the dunes, and thus the fact that the ordinance is barren of legislative findings is not fatal to its validity as a police power regulation (see Lighthouse Shores, Inc. v. Town of Islip, 41 N.Y.2d 7, 390 N.Y.S.2d 827, 359 N.E.2d 337). In Lighthouse Shores it was established that vehicular traffic on Fire Island was destructive of the ecology and therefore it is obvious that building construction is equally or more injurious.

Once it is demonstrated that a restriction serves some legitimate public purpose, the property owner, in order to sustain an attack on constitutional grounds, must establish that the resulting hardship is such as to deprive him of any use of the property to which it is reasonably adapted or destroys the greater part of its value (Salamar Builders Corp. v. Tuttle, supra). A restriction is invalid if it frustrates the owner in the use of his property (Fred F. French, supra) or deprives him of any reasonable use to which any owner would be entitled to put the property (Charles v. Diamond, supra). In the case at bar the property at issue was purchased for the purpose of construction of a dwelling, such construction has been commenced, and it has not been shown that the land is not suitable for that purpose. The legislative restriction on the use of the land, however, limits construction to "a stair, lookout platform or fence." Such a restriction deprives the petitioner of any reasonable use of the property to which it is reasonably adapted and must be deemed unreasonable and a violation of the due process clause. Under the police power analysis found in the older New York cases it might have been characterized as "confiscatory" and a "taking without compensation" (see, e.g., ArverneBay Const. Co. v. Thatcher, supra; Eaton v. Sweeny, supra), but to do so is to confuse the metaphor with reality. Absent factors of governmental displacement of private ownership, occupation or management, there is no "taking" within the meaning of constitutional limitations and no right to compensation as for a taking in eminent domain (Fred F. French, supra). Petitioner is entitled to a declaration that the ordinance as applied to her property is an invalid exercise of the police power under the due process clauses of the state and federal constitutions. Under the terms of the ordinance, nevertheless, a declaration of invalidity, even though cast in terms of a "taking" in the legislation, sets in motion 68-59.3B pursuant to which the Town Board may either institute condemnation proceedings or approve the application.

In light of this determination, it is unnecessary to reach the estoppel issue.

Settle judgment declaring the invalidity of section 68-59.1 of the Islip Code as applicable to petitioner's property and providing for the further steps available to the Town Board.