de St. Aubin v. Flacke

Decision Date10 July 1986
Citation505 N.Y.S.2d 859,68 N.Y.2d 66,496 N.E.2d 879
Parties, 496 N.E.2d 879 Honore DE ST. AUBIN et al., Respondents, v. Robert F. FLACKE, as Commissioner of Environmental Conservation of the State of New York, Appellant.
CourtNew York Court of Appeals Court of Appeals

Robert Abrams, Atty. Gen. (John G. Proudfit, Robert Hermann, Ezra I. Bialik, Stuart Miller and Jane Levine, New York City, of counsel), for appellant.

Michael Bradie, Cedarhurst, for respondents.


SIMONS, Judge.

Petitioners own 103 acres of real property contained in four contiguous parcels locat in the Town of Hempstead. Because part of the land has been classified as tidal wetlands, respondent Commissioner of Environmental Conservation has denied them a permit to fill in the wetland portion and develop the acreage into 607 single-family residences. Accordingly, they instituted this proceeding pursuant to ECL § 25-0404 to review respondent's denial of their application or, alternatively, if the court found respondent's action proper, to obtain a declaration that regulation of the properties constitutes a taking without just compensation in violation of the Federal and State Constitutions (U.S. Const. 5th Amend.; N.Y. Const., art. I, § 7). Special Term upheld respondent's denial of the application but conclud that petitioners had proven a taking. It ordered respondent to either grant petitioners' requested 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 leave.


The Tidal Wetlands Act was enacted in 1973. It was designed to "preserve and protect tidal wetlands, and to prevent their despoliation and destruction, giving due consideration to the reasonable economic and social development of this state" (ECL § 25-0102). The legislative findings state that tidal wetlands constitute "one of the most vital and productive areas of our natural world" and that their "protection and preservation" are held to be "essential" (L.1973, ch. 790, § 1). Thus, the act provides that properties designated by the Commissioner of Environmental Conservation as tidal wetlands of the State (ECL § 25-0201), just as those designated freshwater wetlands (ECL § 24-0301 et seq.), are subject to "rigorous regulation" (cf. Spears v. Berle, 48 N.Y.2d 254, 260, 422 N.Y.S.2d 636, 397 N.E.2d 1304). Any form of dredging or filling, or the erection of any structures within or immediately adjacent to inventoried wetlands which may substantially impair or alter their natural condition, is prohibited without a permit (ECL § 25-041[1], [2] ) and to obtain a permit, an applicant must demonstrate that the proposed activity will be "in complete accord with the policy and provisions" of the act (ECL § 25-0402[1] ).

Since wetlands restrictions are far more stringent than most other regulations--restricting development per se--the Legislature has provided property owners with a unique remedy against an unconstitutional taking within the context of the regulatory scheme itself. Thus, if a permit is denied or the permit offered is more limited in scope than that sought, the owner may seek judicial review of the administrative denial in a two-step proceeding. If the court finds that the permit denial is supported by substantial evidence, then a second determination is made in the same proceeding to determine whether the restriction constitutes an unconstitutional taking requiring compensation. The taking determination is made on the basis of a full evidentiary hearing and if the landowner prevails the Commissioner is directed, at his option, to either grant the requested permit or institute condemnation proceedings (ECL § 25-0404; cf. Spears v. Berle, supra, at p. 261, 422 N.Y.S.2d 636, 397 N.E.2d 1304).

This appeal involves a judicial determination made under this statutory procedure and requires resolution of three issues: first, whether petitioners' claims, instituted before petitioners had sought and been denied a variance or rezoning of the properties by the Hempstead Town Board, are ripe for judicial review; second, if they are, did the courts below err in placing the burden on respondent to prove that there existed a reasonable probability that petitioners could obtain a rezoning of the subject parcels; and third, if petitioners had that burden, does the evidence in the record support their claim.

There should be a reversal. Although the matter is ripe for review, the courts below erroneously shifted to respondent the burden of proving that there was a reasonable probability of rezoning and thus required him to prove that the property could be economically developed.


Petitioners' properties are located in the community of Lido Beach between Lido Boulevard on the south and Reynolds Channel on the north. Respondent has designated 81 acres of it bordering the channel as tidal wetlands and the remaining 22 acres as uplands. Under the restrictions on development found in the act and applicable regulations, a permit is required for construction of single or multifamily dwellings on either wetlands or uplands (see, ECL §§ 25-0401--25-0403; 6 NYCRR 661.5-661.11). There is this difference, however; development is a presumptively incompatible use for wetlands while it is classified as a generally compatible use for uplands (6 NYCRR 661.5[a], [b]; ECL § 25-0401). Once a permit is granted other restrictions apply. The most significant of these are the requirements that lots must have a minimum area of 20,000 square feet and that there must be a 75-foot setback from the edge of the wetlands to a principal dwelling (6 NYCRR 661.6[a][1], [5] ). Cluster zoning is specifically provided for, however, and respondent may also grant variances from these restrictions (see, 6 NYCRR 661.6[a][6]; 661.13).

In addition to the restrictions imposed under the authority of the Environmental Conservation Law, the Town of Hempstead has zoned petitioners' properties as Residence B, a classification permitting only single-family dwellings on lots having a minimum size of 6,000 square feet. In 1972, before enactment of the Tidal Wetlands Act, petitioners applied to the Town Board to rezone the entire tract to multifamily development. The applications were denied.

The Tidal Wetlands Act became effective on September 1, 1973 and petitioners' properties were tentatively designated as wetlands and were, therefore, subject to the act's moratorium on development while all such lands were inventoried and final boundaries drawn (see, ECL §§ 25-0201--25-0202). In October and November 1973, petitioners applied to respondent for hardship permits seeking permission to fill the entire 103 acres for the purpose of constructing single-family dwellings in compliance with the Town zoning regulations (see, ECL § 25-0202[2] ). The applications were denied without prejudice to the filing of new applications for development of the upland portions of the tract.

Following completion of the inventory proceedings, respondent finally designated petitioners' parcels as wetlands. In 1979 and 1980, petitioners reapplied for permits seeking essentially the same development they had requested in 1973. At the public hearing, they conceded that there had been no substantial change in the wetlands since 1973, they did not contest the basis of the 1974 denial of the similar request and they presented no witnesses or other evidence in support of the applications. Predictably, their applications were denied, once again without prejudice to the submission of new applications to develop the upland portions of the properties. Instead, petitioners commenced this proceeding.

Special Term found that respondent's denial was supported by substantial evidence and set the matter down for trial on petitioners' taking claim. Approximately nine months before trial, respondent submitted to petitioners' counsel, in compliance with our decision in Spears v. Berle 48 N.Y.2d 254, 263, n. 4, 422 N.Y.S.2d 636, 397 N.E.2d 1304, supra, a letter and accompanying map outlining the uses of the upland properties that he would permit. He proposed two alternative methods of development. The first recommended division of the uplands into 52 lots each containing 20,000 square feet. Although some of the lots bordering on the wetlands boundary contained wetlands within them, the proposal retained the 75-foot setback for each principal dwelling from the wetlands boundary in accordance with the regulations (see, 6 NYCRR 661.6[a][1] ) but proposed that each lot could be occupied by a two-family duplex or condominium, the type of housing included under the definition of "princip building" in the wetland regulations (see, 6 NYCRR 661.4[z] ). Second, respondent stated that cluster development of the uplands, apparently using the wetlands as the open space, would be permitted (see, 6 NYCRR 661.6[a][6]; cf. Matter of Friends of Shawangunks v. Knowlton, 64 N.Y.2d 387, 487 N.Y.S.2d 543, 476 N.E.2d 988).

At the taking trial, the parties' appraisers were in substantial agreement on the value of the properties without the wetlands restrictions. They differed on their "after values", however, agreeing that the upland area could be developed but disagreeing on the form that development could take. Petitioners' appraiser premised his after value on strict compliance with the existing requirements of both the local zoning ordinance and the wetland regulations without considering the possibility of any variances or changes in them. Based upon this, he concluded that the uplands could be developed into 29 single-family dwellings sited on lots of 20,000 square feet. Respondent's appraiser based his "after value" on respondent's January 1982 letter proposal, assuming that petitioners could obtain changes in zoning to allow multifamily or cluster development on the uplands parcels. According to respondent's appraiser this would yield at...

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