NY: Reasonable Probability That Wetlands Designation Is A Regulatory Taking Under Penn Central

Posted on December 29, 2014

A short one (as usual) from the New York Supreme Court, Appellate Division.

The court’s opinion in New Creek Bluebelt, Phase 4 v. City of New York, No. D42909 (Nov. 19, 2014) is so brief, you should just read it yourself. But here are the highlights:

The city condemned a 19,500 square-foot vacant parcel on Staten Island.
The property had been designated “wetlands” before the current owners acquired it.
Applying a Penn Central analysis, the trial court determined, and the appellate division affirmed, that it was reasonably probable the wetlands designation was a regulatory taking.
The regulations resulted in an 82% diminution of value.
That’s usually not enough, standing alone, but the regulations also were an “effective prohibition on development on any part of the property.”

For more, see this post (“Appellate Division Affirms 75% Increment Applicable to Wetlands Taking“) from our Owners’ Counsel colleagues at Goldstein, Rikon, Rikon, and Houghton, for more. They represent the prevailing property owners.