In re New Creek Bluebelt, Phase 4

• Decision Date: 19 November 2014
• Parties: In the Matter of NEW CREEK BLUEBELT, PHASE 4. Lawrence N. Paolella, et al., respondents-appellants; City of New York, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 859
997 N.Y.S.2d 447
2014 N.Y. Slip Op. 08029

In the Matter of NEW CREEK BLUEBELT, PHASE 4.

Lawrence N. Paolella, et al., respondents-appellants;
City of New York, appellant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 19, 2014.

997 N.Y.S.2d 449

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Rochelle Cohen, Fred Kolikoff, and Leslie Wright of counsel), for appellant-respondent.

Goldstein, Rikon, Rikon & Houghton, P.C., New York, N.Y. (Jonathan Houghton and Ashley Levi of counsel), for respondents-appellants.

PETER B. SKELOS, J.P., MARK C. DILLON, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

Opinion

122 A.D.3d 859

In a condemnation proceeding, the condemnor, City of New York, appeals, as limited by its brief, from so much of a first separate and partial final decree of the Supreme Court, Richmond County (Saitta, J.), dated June 6, 2012, as, upon a decision of the same court dated May 7, 2012, made after a nonjury trial, determined that there was a reasonable probability that the imposition of wetlands regulations on the subject real property constituted a regulatory taking and applied an increment of 75% in calculating the final condemnation award, and the claimants, Lawrence N. Paolella and Liana Paolella, cross-

122 A.D.3d 860

appeal, as limited by their brief, from so much of the same first separate and partial final decree, as applied extraordinary development costs of $723,000 in calculating the final condemnation award, and awarded them the principal sum of only $810,000 as just compensation for the taking of their real property.

ORDERED that the first separate and partial final decree is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Lawrence N. Paolella and Liana Paolella (hereinafter together the claimants) were the owners of a vacant, unimproved, 19,500–square–foot property on Staten Island. Sometime after they acquired title, the entire property was designated as wetlands, and on June 11, 2007, the City of New York, as part of its New Creek Bluebelt, Phase 4 project, acquired the property from the claimants. The claimants commenced this action against the City, seeking $1,090,000 as just compensation for the regulatory taking resulting from the wetlands regulations imposed on the property.

A nonjury trial was held, after which the Supreme Court held, in pertinent part, that: (1) the claimants established a reasonable probability that the imposition of the wetlands regulations on the property constituted a regulatory taking; (2) in calculating the final condemnation award, it would apply the 75% increment sought by the claimants, not the approximately 41% increment sought by the City; (3) in calculating the final condemnation award, it would apply, as extraordinary development costs, the sum of $723,000 sought by the City, not the sum of $62,000 sought by the claimants; and (4) the final condemnation award to which the claimants were entitled was $810,000.

The City challenges the Supreme Court's determinations that a reasonable probability existed that the imposition of the wetlands regulations on the property constituted a regulatory taking, and that

997 N.Y.S.2d 450

the application of a 75% increment in calculating the final condemnation award was appropriate. The claimants challenge the court's determinations to accept the City's estimate of extraordinary development costs in the sum of $723,000, and that they were entitled to a final condemnation award of only $810,000.

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Yu Ling Hu

122 A.D.3d 861

v. Zapas, 108 A.D.3d 621, 969 N.Y.S.2d 491 ; Pernell v. 287 Albany Ave., LLC, 95 A.D.3d 1094, 944 N.Y.S.2d 614 ).

In a condemnation proceeding, a property restricted by wetlands regulations is valued pursuant to the restrictions imposed by the wetlands regulations at the time of the taking, unless the claimant can demonstrate a reasonable probability that “a higher or more productive use of the property would have been available by reason of a legislative rezoning or a judicial declaration of invalidity of the use restriction” (Chase Manhattan Bank v. State of New York, 103 A.D.2d 211, 217, 479 N.Y.S.2d 983 ; see Berwick v. State of New York, 107 A.D.2d 79, 84, 486 N.Y.S.2d 260 ). “A landowner who claims that land regulation has effected a taking of his [or her] property bears the heavy burden of overcoming the presumption of constitutionality that attaches to the regulation and of proving every element of his [or her] claim beyond a reasonable doubt” (de St. Aubin v. Flacke, 68 N.Y.2d 66, 76, 505 N.Y.S.2d 859, 496 N.E.2d 879 ; see Adrian v. Town of Yorktown, 83 A.D.3d 746, 920 N.Y.S.2d 411 ; Matter of Friedenburg v. New York State Dept. of Envtl. Conservation, 3 A.D.3d 86, 92, 767 N.Y.S.2d 451 ).

Generally, while property may be regulated to a certain extent, if...