Matter of Friedenburg v. Dec
| Citation | 767 N.Y.S.2d 451,2003 NY Slip Op 18838,3 A.D.3d 86 |
| Decision Date | 24 November 2003 |
| Docket Number | 05219 |
| Parties | In the Matter of STANLEY FRIEDENBURG et al., as Executors of GWENDOLYN LONDINO, Deceased, Respondents, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Appellant. |
| Court | New York Supreme Court Appellate Division |
S. MILLER, J.P.
This appeal presents us with the opportunity to address issues arising from the application of New York State wetlands regulations, as administered by the appellant, the New York State Department of Environmental Conservation (hereinafter the DEC), which have virtually eliminated the ability of the petitioners to utilize waterfront real property. The ultimate question to be answered is whether the application of these regulations rises to the level of a taking, thereby requiring the payment of monetary compensation. Under the circumstances of this case, we agree with the Supreme Court that a taking has occurred.
The parcel of real property at the center of the instant controversy is approximately 2.5 acres in area, located on the north side of Meadow Lane in the Village of Southampton. The property is situated within a residential zone, pursuant to the zoning ordinance of the Village of Southampton. The lot fronts upon the south shore of the Shinnecock Bay and is immediately east of the adjacent Southampton helicopter landing pad. All but a small upland portion of the parcel has been classified as tidal wetlands.
Insofar as relevant to this appeal, the property was purchased in 1962 by the late Gwendolyn Londino, who died on October 12, 1983. It is now owned by her estate, under the control of the petitioners who are the executors thereof.
It is generally acknowledged that at the time of purchase, the wetland areas on the property could legally have been filled in, and there were essentially no restrictions to prohibit the construction of a single family home. In 1973, New York State adopted the Tidal Wetlands Act (ECL art 25; L 1973, ch 790). Pursuant thereto, the DEC determined that virtually all of the subject parcel should be designated as tidal wetlands. In or about 1987, the petitioners applied for a tidal wetlands permit for the construction of a single family residence. After extensive administrative proceedings, the DEC denied the application via a written decision dated April 14, 1995, because, inter alia, the septic system of the proposed project would cause the release of sewage effluent containing pathogenic bacteria and viruses into the waters of Shinnecock Bay and into the nearby wetlands.
Concomitantly, in October of 1989, the Village of Southampton adopted wetlands regulations as part of its zoning code in article III (A) entitled "Wetlands." The wetlands code is administered by the Village's Zoning Board of Appeals (hereinafter the ZBA). Contemporaneous with the proceedings for a wetlands permit before the DEC, the petitioners applied for a village wetlands permit. The ZBA denied the application without prejudice, on the ground that the DEC's denial of the application for a state wetlands permit precluded the ZBA from granting approval for a village permit (see ECL 25-0302 [1]).
The petitioners thus commenced this proceeding in 1995 for an order annulling the DEC's April 14, 1995, determination and directing the issuance of the state wetlands permit. In the alternative, the petitioners prayed, inter alia, that the DEC's action be regarded as a taking of property without just compensation, and that pursuant to ECL 25-0404, the DEC be ordered to commence condemnation proceedings.
The DEC moved to dismiss the proceeding; the motion was denied by order of the Supreme Court dated February 1, 1996. For procedural reasons, this Court modified the order in Matter of Friedenburg v New York State Dept. of Envtl. Conservation (240 AD2d 407 [1997]), to the extent of dismissing the petitioner's cause of action seeking to annul the April 14, 1995, determination. However, this Court sustained the remainder of the petition, including the taking claims, finding that those claims stated valid causes of action.
On July 11, 1997, the DEC issued a letter pursuant to Spears v Berle (48 NY2d 254 [1979]), according to which the DEC indicated it would permit the following activities on the property:
On January 18, 2000, the Supreme Court denied the DEC's subsequent summary judgment motion.
A hearing was held on the petition in the Supreme Court on April 3, 4, 6, and 7, 2000. Ronald Haberman, a licensed real estate appraiser testifying for the petitioners, stated that using a comparable sales approach the market value of the property prior to enforcement of the tidal wetlands regulations on April 14, 1995, was $665,000, and after enforcement there was either no market value or the value was nominal. Haberman indicated that in determining the postenforcement value, he considered the uses enumerated in the Spears letter but could find no competitive market for property with those limitations. Edward Deyermond, the Tax Assessor of the Town of Southampton, applying the equalization rate to the assessment in the Village of Southampton's memorandum of taxes, testified that the market value of the parcel was $802,208 in 1993, $674,396 in 1994, and $664,761 in 1995.
John Holden, a professional engineer, confirmed that a septic system to serve a home could be built on the property under pre- and post-1995 Suffolk County health regulations. Anthony Tohill and Gilbert Flanagan, attorneys, testified that there was a great likelihood that local zoning approval to construct a house would be given to the petitioners if the DEC issued a permit.
Stanley Friedenberg, sued herein as Stanley Friedenburg, one of the executors for the estate of Gwendolyn Londino, testified that during the time he had been involved with the property, no one had approached him for the purpose of acquiring the property for any purpose associated with the helicopter landing pad.
Scott Strough, President of the Board of Trustees of the Freeholders and Commonality of the Town of Southampton (hereinafter the Trustees), testified that DEC approval would not preclude the need for the petitioners to seek a permit from the Trustees for the combination catwalk, ramp, floating dock, and houseboat referred to in the Spears letter as uses 2 and 5. He further testified that the Trustees denied a similar application by the owner of the property immediately to the east of the subject parcel (hereinafter the Newman parcel). He opined that the Trustees would deny the catwalk, ramp, and dock as referred to in use 2, and stated that approval for a smaller version of this project would be unlikely. Strough testified that the Trustees would not approve the mooring of a single-family houseboat referred to in use 5. Strough stated that he spoke with his fellow board members about this and they shared his opinion as to the likelihood of permitting the proposals in the Spears letter.
Roy Haje, an environmental consultant, testified that use 1 in the Spears letter consisted merely of those uses for which no permit was necessary pursuant to the tidal wetland regulations. He further testified that it was very unlikely that the ZBA would approve the parking area in use 3 or the 225 square-foot structure in use 4 of the Spears letter.
Patrick Given, a licensed real estate appraiser, testified for the DEC that, using the sales comparison method, the market value of the petitioners' property never exceeded $50,000. The basis for this conclusion was his determination that the property was a wetlands parcel that could not be developed. Given's opinion was that the property's highest and best uses were for recreational purposes such as the water access uses referred to in the Spears letter. Given testified that the potential purchasers for such a parcel consisted primarily of neighbors. Given also referred to a comparable sale in 1993 of the 3.9-acre Newman parcel. This parcel, which consisted almost entirely of all or nearly all wetlands, was sold for $35,000.
George Stadnik testified that he was employed by the DEC as a marine resource specialist one whose duties included reviewing tidal wetlands...
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