US v. 0.16 OF AN ACRE OF LAND, ETC.
| Decision Date | 06 July 1981 |
| Docket Number | No. 79 C 1755.,79 C 1755. |
| Citation | 517 F. Supp. 1115 |
| Parties | UNITED STATES of America, Plaintiff, v. 0.16 OF AN ACRE OF LAND, MORE OR LESS, SITUATED IN the COUNTY OF SUFFOLK, STATE OF NEW YORK, and Frederick Rose, State of New York, County of Suffolk, Suffolk County Real Property Tax Services, Thurman B. Givan and Crispin Cooke, d/b/a North Shore Medical Group, William Peio, Smithhaven Holding Corp., and Unknown Others, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
COPYRIGHT MATERIAL OMITTED
Edward R. Korman, U. S. Atty., Brooklyn, N. Y. (Laura R. Handman, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for plaintiff.
Flower & Plotka, Bay Shore, N. Y. (Bonita G. Lesnik, Islip, N. Y., of counsel), for defendants.
AMENDED MEMORANDUM AND ORDER
On July 9, 1979, plaintiff United States of America brought this action to condemn a certain parcel of land. Pursuant to the Declaration of Taking Act, 40 U.S.C. § 258a, a declaration of taking was filed, an estimated just compensation of $20,000 was deposited with the court, and title vested in the United States. By order of this court dated July 9, 1979 the United States was awarded immediate possession, and just compensation to those entitled to it was ordered to be ascertained and awarded in accordance with established procedures.
Defendant Frederick Rose, who had received notice of the taking, filed an answer raising multiple objections to the condemnation. The United States moves to strike those objections and for summary judgment.
The following facts are undisputed. In May of 1977, Rose bought a plot of land located on the westernmost part of Davis Park in the Town of Brookhaven, Suffolk County, New York. Davis Park is within the boundaries of the Fire Island National Seashore. On the plot's northern border is Great South Bay and on the west is undeveloped federal land. The plot contained a house built prior to the creation of the National Seashore.
In 1977 Rose applied to the Town Zoning Board for a variance from the minimum plot area and yard setback requirements of the applicable zoning ordinances and for a building permit. He proposed to subdivide the plot and construct an additional residence on a portion fronting the Bay. The Superintendent of the Seashore sent a letter on August 11, 1977, to the Board making objections to the granting of the variance. Nevertheless, on February 15, 1978 the variance and building permit were granted. In a July 6, 1978 letter the Superintendent told Rose of the National Park Service's continuing objections.
In April 1979 Rose commenced construction of a residence on the subdivided parcel of 0.16 acres. Pursuant to authority from Congress the Secretary of the Interior instituted this proceeding to condemn the subdivided parcel. The remainder of the original parcel, on which the original house stands, remains in Rose's possession.
Rose's answer asserts eleven objections to the taking. These allege, with considerable duplication, that the taking 1) is not authorized by the Fire Island National Seashore Act, 16 U.S.C. § 459e et seq., 2) was arbitrary and capricious and in bad faith, 3) violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and 4) violated defendant's right to due process under the Fifth Amendment. Defendant thereafter also claimed that the taking violated the Tenth Amendment. These allegations will be discussed seriatim.
On September 11, 1964 Congress passed the Fire Island National Seashore Act, 16 U.S.C. § 459e et seq., establishing the Fire Island National Seashore. The Act recites that its purpose is to conserve and preserve, "for the use of future generations certain relatively unspoiled and undeveloped beaches, dunes, and other natural features" on and near that island. 16 U.S.C. § 459e(a). The Act further provides that:
The Secretary is authorized to acquire, and it is the intent of Congress that he shall acquire as appropriated funds become available for the purpose ... the lands, waters, and other property, and improvements thereon and any interest therein, within the boundaries of the seashore ....
The only limits on the Secretary's authority to carry out this mandate by condemning private property within the boundaries of the National Seashore are, so far as relevant here, as follows:
With one exception not pertinent here the Secretary shall not acquire any privately owned improved property or interests therein within the boundaries of the seashore or any property or interests therein within the communities delineated on the boundary map of which the Davis Park is one ..., except beach or waters and adjoining land within such communities which the Secretary determines are needed for public access to the beach, without the consent of the owners so long as the appropriate local zoning agency shall have in force and applicable to such property a duly adopted, valid, zoning ordinance that is satisfactory to the Secretary.
16 U.S.C. § 459e-1(e). This suspension of the authority of the Secretary to acquire by condemnation ceases automatically under the circumstances set forth in 16 U.S.C. § 459e-2(e), which provides in pertinent part:
If any improved property, with respect to which the Secretary's authority to acquire by condemnation has been suspended according to the provisions of ... this title, is made the subject of a variance under, or becomes for any reason an exception to, such zoning ordinance, or is subject to any variance, exception, or use that fails to conform to any applicable standard contained in regulations of the Secretary issued pursuant to this section and in effect at the time of the passage of such ordinance, the suspension of the Secretary's authority to acquire such improved property by condemnation shall automatically cease.
While the Town of Brookhaven never submitted its zoning plan to the Secretary for approval, the applicable regulations provide that, "those provisions relating to acreage, frontage, and setback requirements contained in zoning ordinances of the town of Brookhaven ... are hereby incorporated as the acreage, frontage, and setback standards for developments with the Seashore ...." 36 C.F.R. § 28.6(a)(5).
Rose's argument is ingenious if not persuasive. It goes as follows. Section 459e-1(e) prohibits the acquisition without an owner's consent (where a zoning ordinance "satisfactory" to the Secretary is in effect) of "improved property" anywhere within the national seashore and of "any property," improved or unimproved, within the "communities" delineated on a certain boundary map, including Davis Park. By incorporating the Brookhaven zoning ordinances in the federal standards the Secretary designated those ordinances as "satisfactory" to him. The section providing that the prohibition against condemnation shall cease when a variance from a zoning ordinance is granted, section 459e-2(e), refers not to "any property" but to "any improved property" over which the Secretary's power to acquire has been suspended. Therefore, says Rose, while the Secretary can condemn in Davis Park a parcel subject to a variance with a residence on it, he may not condemn a vacant or "unimproved" parcel in that community.
Rose does not suggest any plausible reason why Congress should choose to bring about such an incongruous result, according to unimproved plots in the designated community greater protection against condemnation than that given to occupied parcels. It would seem that any rational plan would hardly favor the owner of vacant land over the established homeowner. Indeed, the emphasis in the Senate Report and the report by the Secretary of the Interior in support of the legislation was on the protection of the owners of improved property not only against condemnation but against "any undesirable use or development." 88th Cong. 2d Sess., reprinted in 1964 U.S. Code Cong. and Ad. News 3710 ff.
The scheme appears to have been to treat for purposes of protection against condemnation all the properties in the delineated (and presumably populous) "communities" as equivalent to the improved properties elsewhere in the national seashore. The Senate Report leaves no doubt on this score. "The bill further provides that private property, both improved and unimproved, may be retained by its owner, within certain designated communities, as long as it is maintained in accordance with approved local zoning requirements ...." (Emphasis supplied). S.Rep. No. 1300, 88th Cong.2d Sess., reprinted in 1964 U.S. Code Cong. and Ad. News 3710. It would make no sense to permit the Secretary to protect the seashore against local variances only when the property is improved and leave to local authorities in the designated communities the uninhibited decision to allow by variance massive or polluting structures on vacant land. Thus Section 459e-2(e) should be read to bring an end to the suspension of the power of the Secretary to condemn whenever and wherever local variances are granted. For purposes of Section 459e-2(e) therefore the words "improved property" may fairly be read to include any property within the designated communities.
This may seem literally inconsistent with Section 459e-1(f) defining improved property as any building the construction of which was begun before July 1, 1963, and such amount of the land (not exceeding two acres for a residence) as the Secretary considers "reasonably necessary to the use of the building." But the court is not required to read the statute so literally as to frustrate its manifest purpose. Indeed, the very definition of "improved property" in Section 459e-1(f) emphasizes how fatuous would be the result if Rose's interpretation were accepted. The Secretary would have no means of protecting against wholesale variances for property vacant before July 1, 1963 in the delineated communities except by withdrawing his approval of all zoning ordinances....
To continue reading
Request your trial
-
US v. 0.35 OF AN ACRE OF LAND, WESTCHESTER CTY.
...authorized purpose. Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98, 102-103, 99 L.Ed. 27; United States v. .16 of an Acre, 517 F.Supp. 1115, 1120 (E.D.N.Y.1981); Merjanian v. United States, slip op. no. 80-7122 (S.D.N.Y. February 10, 1981). Though some courts have held the taking of prop......
-
United States v. 49.79 Acres of Land
...general rule is that private property can constitutionally be taken by eminent domain only for a "public" use. United States v. 0.16 Acres of Land, 517 F.Supp. 1115 (E.D.N.Y.1981). As a result, in a condemnation proceeding, the only inquiries for judicial review are whether the expressed us......
-
McDonald v. Bd. of Mississippi Levee Com'rs, Civ. A. No. GC 83-256-GD-O.
...as to how the Mississippi Supreme Court would address these issues. 11 This case must be contrasted with United States v. 0.16 of an Acre of Land, 517 F.Supp. 1115, 1122 (E.D.N.Y.1981). In that case broad discretion vested in the Secretary of Interior was held not to be arbitrary because th......
-
U.S. v. Herring, 83-2429-EA
...1106, 86 L.Ed. 1753 (1942); United States v. 0.16 of an acre of land, more or less, situated in the County of Suffolk, State of New York, et al., 517 F.Supp. 1115, 1121-1122 (E.D.N.Y., 1981). The failure of the United States to provide adequate notice of the valuation proceedings to appelle......
-
Open Space Preservation and Biological Sequestration
...v. City of Melrose, 601 F. Supp. 201 (D. Mass. 1985); United States v. 0.16 of an Acre of Land, More or Less, Situated in Sufolk, N.Y., 517 F. Supp. 1115 (E.D.N.Y. 1981). 50 N.Y. Const. art. XIV, §4. 51 N.Y. City Law §20(2); N.Y. Town Law §64(2); N.Y. Village Law §1-102(1); N.Y. Mun. Home R......