Tilles Inv. Co. v. Town of Huntington

• Citation: 137 A.D.2d 118,528 N.Y.S.2d 386
• Parties: The TILLES INVESTMENT COMPANY, Respondent-Appellant, v. The TOWN OF HUNTINGTON, Appellant-Respondent.
• Decision Date: 16 May 1988
• Court: New York Supreme Court Appellate Division

Page 386

528 N.Y.S.2d 386

137 A.D.2d 118

The TILLES INVESTMENT COMPANY, Respondent-Appellant, v. The TOWN OF HUNTINGTON, Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

May 16, 1988.

Herbert A. Smith, Jr., Town Atty., Huntington, for appellant-respondent.

Goldstein & Rubinton, P.C., Huntington (Arthur Goldstein, of counsel), for respondent-appellant.

Before MOLLEN, P.J., and BRACKEN, SPATT and SULLIVAN, JJ.

BRACKEN, Justice.

On this appeal, the plaintiff landowner claims that the application of a local zoning ordinance to its land is unconstitutional. This claim is premised not so much upon an assertion that the restriction on land use contained in the ordinance constitutes a "taking" of its property in violation of the Just Compensation Clause of the Fifth Amendment (U.S. Const. 5th Amend.), as upon the argument that since the ordinance bears no rational relation to the achievement of some rightful governmental objective, it represents an invalid exercise of the town's authority to regulate land use in the interest of the public welfare (see, Town Law § 261). We find that the plaintiff has failed to meet its heavy burden of proving that the zoning classification of its property is unconstitutional and we therefore modify the judgment appealed from so as to declare the Zoning Code of Huntington constitutional as applied to the plaintiff's property.

I

The plaintiff is the owner of approximately 52 acres of land situated to the south of the eastbound service road of the Long Island Expressway and to the west of Walt Whitman Road, in Melville, New York. This land is currently zoned R-40 residential. Pursuant to this zoning classification, the plaintiff's property may be developed with single-family homes built on lots no less than one acre in size.

There is more vacant land, also zoned as R-40 residential, immediately to the west of the plaintiff's property. To the south of the plaintiff's land, there is a vacant field. Further to the south and on the west side of Walt Whitman Road, there is a small development of homes on small lots, adjoining Pine Ridge Street and Drexel Avenue. Still further south, a residential condominium is under development in an area originally zoned R-40 but which, in a prior unrelated action, was ordered rezoned by the Supreme Court, Suffolk County. To the northwest, across the Long Island Expressway, there is another R-40 district, which has been developed with a residential community. Thus, the subject property is abutted on three sides by primarily residential districts. It is mainly to the east, across Walt Whitman Road, and to the northeast that the character of the area has become distinctly commercial or industrial.

The Supreme Court, Suffolk County, found after a trial, at which the Town produced no witnesses, that "it was not practicable, on any basis, to develop the property on one acre residential lots because of the industrial and commercial uses in the surrounding areas and upon every approach to the property; the flat topography; the lack of trees; its frontage on Walt Whitman Road, its location cheek to jowl to the Expressw and its service roads; the noise levels generated by the traffic and the present uses of the surrounding properties at all hours of the day and night". The court also concluded that "the character of the surrounding area has changed so radically that it is unreasonable for the Town to demand that the [plaintiff's] property be kept in its R-40 zoning". The court, based on these findings, among others, held that the R-40 zoning of the plaintiff's land is unconstitutional.

We might well agree with the trial court's characterization of the zoning of the plaintiff's land as "unreasonable", in the sense that a less restrictive zoning might render the land more profitable to its owner without having an unduly adverse impact on the character of the surrounding neighborhood. The town, by enforcing the R-40 zoning classification applicable to the plaintiff's property, may not be pursuing the most "reasonable" course open to it. However, the enforcement of that zoning classification is not, for that reason alone, unconstitutional. Neither the State nor the Federal Constitution requires that the courts oversee land-use regulation by local governments with reference to some nebulous standard of "reasonability".

II

The Fifth Amendment of the United States Constitution provides, in part, that "private property [shall not] be taken for public use, without just compensation" (U.S. Const. 5th Amend.) This amendment requires the State or Federal government to provide fair compensation whenever private property is "taken". It applies, most obviously, to cases where the government deprives a private owner of his title to the property in question. The Just Compensation Clause also applies when the government appropriates by physical possession all or a part of an owner's property, even when the physical occupation is of a minimal nature ( see, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 revg. 53 N.Y.2d 124, 440 N.Y.S.2d 843, 423 N.E.2d 320), and also when the government appropriates some legal interest in the property short of the fee simple such as, for example, an easement (Nollan v. California Coastal Commn., 483 U.S. ----, ----, 107 S.Ct. 3141, 3145, 97 L.Ed.2d 677). It has also become established doctrine that the government's mere regulation of land use, if it renders the property incapable of yielding a reasonable economic return, may constitute a taking ( see, e.g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250).

"The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking" ( Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322). A law which restricts a property owner's right to use his land as he sees fit, or which adversely affects the value of the land, will not be considered as having gone "too far", however, unless it prohibits virtually all economically viable uses of the land. "[A] regulatory program that adversely affects property values does not constitute a taking unless it destroys a major portion of the property's value" ( First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, supra, 107 S.Ct. at 2393 [Stevens, J., dissenting], citing Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472; Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 296, 101 S.Ct. 2352, 2370, 69 L.Ed.2d 1; Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106; see, also, Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138, n. 36, 98 S.Ct. 2646, 2666, n. 36, 57 L.Ed.2d 631, affg. 42 N.Y.2d 324, 397 N.Y.S.2d 914, 366 N.E.2d 1271, reh. denied 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 198).

Thus, in order to prove that an unconstitutional taking has occurred, a land owner must prove that the land cannot yield an economically reasonable return as zoned ( de St. Aubin v. Flacke, 68 N.Y.2d 66, 76-77, 505 N.Y.S.2d 859, 496 N.E.2d 879; Spears v. Berle, 48 N.Y.2d 254, 263, 422 N.Y.S.2d 636, 397 N.E.2d 1304; Marcus Assoc. v. Town of Huntington, 45 N.Y.2d 501, 506, 410 N.Y.S.2d 546, 382 N.E.2d 1323; Williams v. Town of Oyster Bay, 32 N.Y.2d 78, 343 N.Y.S.2d 118, 295 N.E.2d 788). Mere conclusory testimony to the effect that the land cannot yield a reasonable return as zoned is insufficient ( see, e.g., Matter of Village Bd. of Vil. of Fayetteville v. Jarrold, 53 N.Y.2d 254, 259, 440 N.Y.S.2d 908, 423 N.E.2d 385; Matter of Forrest v. Evershed, 7 N.Y.2d 256, 261-262, 196 N.Y.S.2d 958, 164 N.E.2d 841; Matter of Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N.Y. 86, 90, 92 N.E.2d 903, mot. to rearg. or amend remittitur denied 301 N.Y. 681, 95 N.E.2d 44, cert. denied 340 U.S. 933, 71 S.Ct. 498, 95 L.Ed. 673). It is not enough to prove that the land would be more valuable under a less restrictive classification ( see, McGowan v. Cohalan, 41 N.Y.2d 434, 436, 393 N.Y.S.2d 376, 361 N.E.2d 1025; Williams v. Town of Oyster Bay, 32 N.Y.2d 78, 82, 343 N.Y.S.2d 118, 295 N.E.2d 788; Curtiss-Wright Corp. v. Town of East Hampton, 82 A.D.2d 551, 553-554, 422 N.Y.S.2d 125). In order to make the necessary showing, a landowner must offer proof of the market value of the property at the time of acquisition, and proof of the current value of the property as presently zoned ( Matter of Village Bd. of Vil. of Fayetteville v. Jarrold, supra, 53 N.Y.2d at 258, 440 N.Y.S.2d 908, 423 N.E.2d 385; Northern Westchester Professional Park Assoc. v. Town of Bedford, 92 A.D.2d 267, 272, 460 N.Y.S.2d 112, affd. 60 N.Y.2d 492, 470 N.Y.S.2d 350, 458 N.E.2d 809; Curtiss-Wright Corp. v. Town of East Hampton supra; H.J.E. Real Estate v. Town of Hempstead, 55 A.D.2d 927, 390 N.Y.S.2d 636).

In this instance, sufficient proof has not been adduced to establish an unconstitutional taking in accordance with this standard. The plaintiff has failed to furnish evidence as to the fair market value of the property in question at the time of its acquisition, which is not necessarily the same as the amount of plaintiff's investment in the land ( see, Northern Westchester Professional Park Assoc. v. Town of Bedford, supra, 92 A.D.2d at 272-273, 460 N.Y.S.2d 112). The plaintiff also has failed to demonstrate the current value of the property. It is therefore clear that the plaintiff has no viable claim pursuant to the Just Compensation Clause of the Fifth Amendment.

III

Therefore, if it is to prevail in this action, even in the absence of any showing of an unconstitutional confiscation, the plaintiff must prove, beyond a reasonable doubt, that the zoning of its property has no reasonable relation to the achievement of a valid civic...