de St. Aubin v. Flacke

Decision Date05 August 1985
Citation492 N.Y.S.2d 766,109 A.D.2d 481
PartiesHonore de ST. AUBIN, etc., et al., Respondents, v. Robert F. FLACKE, Commissioner of Environmental Conservation of the State of New York, Appellant.
CourtNew York Supreme Court — Appellate Division

Robert Abrams, Atty. Gen., New York City (John G. Proudfit, New York City, of counsel), for appellant.

Lapp & Bradie, Cedarhurst (Michael Bradie, Cedarhurst, of counsel), for respondents.



The issue presented on this appeal is whether petitioners have established that the denial of permits to fill their respective parcels of tidal wetland has destroyed the economic value of their properties or all but a bare residue of that value.

Petitioners are the owners of contiguous vacant parcels of land located in Lido Beach in the Town of Hempstead. The properties, aggregating 103.5 acres, lie between Lido Boulevard to the south and Reynolds Channel to the north. Pursuant to the Tidal Wetlands Act (ECL art. 25), most of this land, specifically 81.3 acres, has been designated by the appellant Commissioner of the Department of Environmental Conservation as tidal wetlands (ECL 25-0201); the remaining 22.2 acres have been classified as uplands. At one time, this tract of land was divided into essentially three different parcels; at present it is divided into four parcels. Ownership has also changed over the years but, for purposes of this appeal, it is sufficient to note that applications for rezoning and developmental permits have always concerned the entire tract.

The properties are zoned Residence B which would permit construction of single-family homes on 6,000 square foot plots. In the late 1960s, petitioner Valley Stream Terrace Corp. filled a portion of its property on the north side of Lido Boulevard and developed a single family residential subdivision known as Lynwood at Lido. In 1972 applications were made to the Hempstead Town Board for a rezoning of the properties comprising the tract to Residence C-A permitting multi-family units. In connection with these applications, an offer was made to dedicate to the town a strip of marshland, fronting on Reynolds Channel, which would be retained in its natural state. The rezoning requests were denied.

In 1973, before the effective date of the Tidal Wetlands Act but after its passage, petitioners Valley Stream Terrace Corp., Lyons and the estate of de St. Aubin all placed some fill on the upland portions of their respective properties. Effective September 1, 1973, any form of dredging, filling or construction within or immediately adjacent to inventoried wetlands was prohibited without a permit (ECL 25-0401). Pending completion of the inventory of all tidal wetlands in the State, a moratorium was declared on wetland alteration, although land owners could seek relief upon a showing of hardship (ECL 25-0202). In October and November 1973, applications were made for hardship permits to place 1,300,000 cubic yards of fill on the entire 103.5-acre tract with the intention that thereafter a total of 607 single-family homes would be constructed. The applications were denied in March 1974, after a public hearing, on the ground that any filling of the marsh areas would cause irreparable damage and be contrary to the policy and provisions of the Tidal Wetlands Act to preserve as much as possible of the remaining wetlands in this State in their natural condition consistent with reasonable economic and social development. The denial was without prejudice to the filing of new applications for development of the upland portions of the properties. Shortly after denial of the moratorium permit applications, an action was commenced in the Supreme Court for a judgment declaring the Tidal Wetlands Act unconstitutional as applied to the properties comprising the tract, upon the ground that it deprived the owners of all reasonable use and enjoyment of those properties without just compensation (see, de St. Aubin v. Biggane, 51 A.D.2d 1054, 381 N.Y.S.2d 533). Claims were also filed in the Court of Claims. All of those matters are still technically pending. Finally, tax certiorari proceedings were commenced which resulted in a substantial reduction in the real property taxes on the parcels comprising the tract (see, ECL 25-0302).

In 1979 petitioners estate of de St. Aubin and Lyons filed permit applications seeking to develop their properties in substantially the same manner proposed in their 1973 applications. In 1980 petitioners Valley Stream Terrance Corp., Thurlow and Nominee Realty Corp. made a similar permit application. In the period between 1973 and 1980 the Department of Environmental Conservation had completed its inventory and most of the properties comprising the tract were classified in such a way as to render construction thereon of residential housing a presumptively incompatible use. Construction of housing on the upland portions is permissible, subject to various setback, lot size and other restrictions (6 NYCRR 661.5, 661.6). At the hearing on their applications, the petitioners agreed that there had been no substantial change in the character of these wetlands since 1973 and did not contest the findings and conclusions underlying the 1974 denial of the prior permit applications. They presented no witnesses or other evidence and, predictably, on February 10, 1981, the appellant denied their applications without prejudice to the filing of new or amended applications for development of the upland portions of the parcels.

Thereafter, petitioners commenced the instant CPLR article 78 proceeding to review the appellant's 1981 determination. Pursuant to the two-stage review process contemplated by ECL 25-0404 (see, Spears v. Berle, 48 N.Y.2d 254, 263, 422 N.Y.S.2d 636), Special Term, upheld the denial of the permits sought by petitioners and directed a hearing to determine whether the provisions of the Tidal Wetlands Act, as applied to petitioners' properties, constituted an unconstitutional taking. Upon the hearing, which truly rivaled a full-blown condemnation trial in its scope, it became clear that the parties were very close on their valuation of the parcels without regard to the development strictures of the Tidal Wetlands Act. The main difference between them was whether or not to deduct the cost of bulkheading along Reynolds Channel from the acreage valuation based on comparable sales. Petitioners' appraiser, William L. Edwards, did not include this expense as a development cost on the theory that it would be entirely recouped from the sale of premium priced waterfront lots. Appellant's appraiser, Robert Von Ancken, believed bulkhead costs were properly part of average development costs and should be deducted from raw acreage values. Special Term found petitioners' approach to be the proper one and their appraisal to be the more credible, a finding amply supported by the record; significantly, if the cost of bulkheading is added to appellant's raw acreage values, the result is a "before value" for each parcel which is concededly very close to petitioners' "before value" for those parcels. 1

There was, however, much less agreement on the properties' "after values". While both sides agreed that development of the uplands was possible, and their single-family lot values were only approximately $5,000 apart before deduction for engineering costs, they vehemently disputed the form such development would take. Essentially, petitioners took the position that upland development had to conform with all of the existing provisions of the Town of Hempstead zoning ordinance, the subdivision regulations of the Nassau County Planning Commission, the present ECL article 25 line (denominating the wetland boundary), and the regulations promulgated...

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2 cases
  • de St. Aubin v. Flacke
    • United States
    • New York Court of Appeals Court of Appeals
    • July 10, 1986
    ...application or commence proceedings to condemn the wetlands portions of their properties. The Appellate Division affirmed (see, 109 A.D.2d 481, 492 N.Y.S.2d 766), and the matter is now before us by our The Tidal Wetlands Act was enacted in 1973. It was designed to "preserve and protect tida......
  • de St. Aubin v. Flacke
    • United States
    • New York Court of Appeals Court of Appeals
    • October 24, 1985
    ...and Trustees Under Will of De St. Aubin (Ovide, Jr.) v. Flacke (Robert F.) NO. 993 COURT OF APPEALS OF NEW YORK Oct 24, 1985 492 N.Y.S.2d 766, 109 A.D.2d 481 MOTION FOR LEAVE TO APPEAL Granted. ...

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