We’re not quite sure what to make of the New York Supreme Court, Appellate Division’s short opinion in 82 Willis, LLC v. City of New York, No. 10303 (Nov. 12, 2019).
There, the court held that flooding on an adjacent vacant lot alleged to have been caused by the city’s project to redo the Willis Avenue Bridge (between Manhattan and The Bronx) was “not sufficiently permanent” to support a claim for inverse condemnation. The city condemned easements on an adjacent lot, but did not exercise eminent domain to take any part of the plaintiff’s property. Although the plaintiff asserted a claim for compensation shortly after the neighboring lot was condemned (2008), it did not assert any claim for flooding until seven years later (2015), when it asserted that a year earlier (2014) its lot was flooded after a rainfall due to a drainage pipe that became blocked by cement.
The city denied liability for a taking, asserting that a claim for flooding must be framed as a tort case, not an inverse condemnation claim.
The Appellate Division agreed, concluding first that the property owner could not make a claim for compensation in the eminent domain case regarding the neighboring lot because the plaintiff’s property was never formally condemned. Slip op. at 3. Moreover, the owner could not assert an inverse condemnation claim (what the court called a de facto taking) because such a claim consists “of either a permanent ouster of the owner, or a permanent interference with the owners’ physical use, possession, and enjoyment of the property[.]” Slip op. at 4.
And the flooding the plaintiff alleged occurred was not “permanent” —
The claim here for inverse condemnation is legally flawed, since the interference with claimant’s property rights, as set forth in its own appraisal report, is not sufficiently permanent to constitute a de facto taking as a matter of law
Slip op. at 5.
Judgment for the city affirmed. What does the appraisal report say about the severity and duration of the flooding? Sorry, we don’t know – the opinion doesn’t say. Here’s all the opinion says about it:
In 2017, claimant submitted the appraisal at issue in this appeal, prepared by Cushman & Wakefield, which determined that during a 31-month period from November 2014 through May 2017, claimant’s property and the non-exclusive access easement became flooded after rainfall. It attributed the flooding to a drainage pipe in the access easement area that became blocked by cement during construction of the new bridge. The appraisal provides that subsequent to the discovery of the flooding, claimant leased out its property and received rental income. Claimant’s alleged flooding damages, as set forth in the appraisal, consist of reduced rental income and the inability to develop residential towers on the property.
Slip op. at 2.
The court obviously must have known the severity and the duration of the flooding, as do the parties. But we (the readers) don’t really know, and we’re left guessing. So much for appellate decisions providing guidance for the public. There are a lot of lawyers in New York, so maybe this is how they all keep working.
Also, what about the rule that temporary takings may be compensable (or at least are not categorically non-compensable)? First English, anyone? Arkansas Game?
Yes, we understand that there is a difference between the facts here (from what we can tell), and the facts of the intentional government flooding in Arkansas Game & Fish which resulted in the Supreme Court rejecting a categorical rule that a single flood can’t be a taking, and which also resulted in the Federal Circuit on remand determining that the single flood was a taking. There, the flooding was purposeful, while here it was, as best we can tell, merely an unintended consequence of the city’s allegedly blocking the drainage pipe with concrete. But still, we would have appreciated some acknowledgement by the court of why the categorical no-takings rule it applied in this case should be different from Arkansas Game. New York law (which the opinion alone cited) may allow a must-be-permanent-to-be-a-taking rule, but the U.S. Supreme Court set the constitutional “floor” higher than that, we thought.
Something tells us that the difference in outcome here might have more to do with the court just not thinking that flooding like this felt like a taking, and looked more like a tort. We know that is not a principled basis for distinction, but you read the barebones opinion (it’s only 5 pages long), and convince us otherwise. There’s hardly anything there that you might call “analysis,” so there’s very little to sink your teeth into to try and identify what the New York court might have based its decision on, or how it reaches a result that we can’t quite square with Arkansas Game.
More from our New York colleague Michael Rikon on his Bulldozers at Your Doorstep blog, “Damages for Flooding Are All Wet in a Condemnation Proceeding.”
82 Willis, LLC v. City of New York, No. 10303 (N.Y. App. Div. Nov. 12, 2019)