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TAKINGS CLAIMS: AN INTRODUCTION (This article is intended as a general discussion of taking claims in New York State.

It is not intended as legal advice to any specific town board or individual. In addition, it is assumed in this discussion that in enacting a protective zoning ordinance or a moratorium, the town board has followed proper procedures.) Philip T. Simpson, Esq.1 Across the Marcellus Shale region of New York State debates have been occurring at the local government level typically town boards about whether to ban hydrofracking through zoning. Debates continue even as two trial-level courts have upheld the power of town boards to zone out hydrofracking in the face of challenges that state law supersedes all local control over hydrofracking, including zoning.1 As part of the debate, hydrofracking proponents have asserted that a zoning ban on hydrofracking would constitute a taking and thereby expose the town and its board to expensive litigation and substantial damages. This article is intended as an introduction to takings law. Although it is written against the backdrop of the hydrofracking debate, its scope is broader than takings claims that may apply to zoning regulations that ban hydrofracking. And although takings law is for the most part federal constitutional law, this article will highlight significant New York decisions concerning takings claims. Finally, while this article will discuss takings claims outside of the real property arena, its primary focus is on takings claims based on the deprivation of real property rights. Takings Claims Based on the U.S. Constitution Takings claims are claims by property owners against government entities for depriving an owner of property without just compensation. The basis of a takings claim is in the Fifth Amendment to the U.S. Constitution. Among other, perhaps more well-known protections, the

Philip T. Simpson is a member of Robinson Brog Leinwand Greene Genovese & Gluck P.C. and practices real estate and commercial law. He can be reached at .

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Fifth Amendment states: nor shall private property be taken for public use, without just compensation.2 In general, government has the right to appropriate private property for public use, provided that it pays just compensation to the owner. A common example of this is a condemnation proceeding, where private property is appropriated by government for a public improvement and the government is prepared to pay the owner just compensation. This is not, generally speaking, subject to a claim of taking. However, when government violates the Fifth Amendment by taking private property without paying just compensation, there is a takings claim. Types of Takings Claims The law on takings claims is created through court decisions and exists in judicial precedents, rather than in statutes. The courts, including the U.S. Supreme Court and the New York Court of Appeals, have recognized several different types of takings claims. While directly appropriating property can be considered a taking, most takings claims involve some form of regulatory action by a government entity. 1) Physical Takings Where government action results in a permanent physical occupation of the property, even as little as one cubic foot, there is a taking that requires compensation. This is referred to as a physical taking. An example of this type of taking was the case of Loretto v. Teleprompter Manhattan CATV Corp.3 In Loretto, a New York law required landlords to allow cable television companies to install cable facilities in and upon landlords buildings. The law allowed compensation to the landlords as determined by a state commission. In practice, this resulted in landlords being paid

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one dollar as compensation for the cable company permanently occupying space in the landlords buildings. One unhappy landlord brought a class action challenging the law. Her suit claimed that any physical occupation authorized by government is necessarily a taking, regardless of the amount of property taken. The New York state courts upheld the law, finding that it served a beneficial purpose, that it did not have an excessive economic impact compared to the landlords total property rights, and that it did not interfere with any reasonable investment-backed expectations of the landlord. The U.S. Supreme Court, however, agreed with the landlord. The Court held that a physical invasion of even one and one-half cubic feet (the approximate amount of space in the landlords building occupied by the cable company) was a taking that required payment of just compensation. This type of taking is referred to as a physical taking. Loretto has been cited in hundreds of decisions. In New York, the Court of Appeals has applied Loretto to hold that a New York City law that required owners of single-room occupancy buildings to keep their units rented, resulted in a physical taking: Where, as here, owners are forced to accept the occupation of their properties by persons not already in residence, the resulting deprivation of rights in those properties is sufficient to constitute a physical taking for which compensation is required.4 Zoning laws that prohibit or restrict specified activities on land within a town do not result in a physical occupation of the land, either by the town or by third-parties. For this reason, the Loretto style takings claim (actual physical occupation) should not apply to local zoning laws and should not be a concern to town boards.

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Total Takings Government regulation that deprives an owner of all economically beneficial use of the

property, so that the owner cannot do anything with the property other than own it, results in a taking. This is referred to as a total taking. An early example of a total taking was Lucas v. South Carolina Coastal Council.5 In Lucas, the property owner purchased two beach-front parcels on a barrier island, intending to build a home on each one. However, after Mr. Lucas purchased the land, South Carolina passed the Beachfront Management Act. This statute prevented Lucas from building any permanent habitable structure on the land. The U.S. Supreme Court found that this was the rare case where a regulation deprived an owner of all economically beneficial use of the property, and was therefore a taking for which compensation was required. The Court did not engage in any balancing of the deprivation inflicted on the land owner against the degree to which the public interest was served by the regulation. Because the taking was a total deprivation of all economically viable uses of the land, and the functional equivalent of a physical appropriation, the owner was entitled to compensation regardless of whether the public interest was promoted by the regulation. This type of taking is referred to as a total taking. In deciding if there has been a total taking, the courts look at the parcel as a whole and not just some part of it.6 As the Supreme Court stated in Keystone Bituminous Coal Ass'n v. DeBenedictis:7 Taking jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature of the interference with rights in the parcel as a whole. ...

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Under this analysis, a taking would occur only if the zoning ordinance deprived the owner of all economic benefit of the parcel, surface as well as subsurface. A zoning ordinance which prohibits sub-surface activities like mining or drilling, but which still leaves the owner the ability to make money from other uses of the property, would not be a total taking. These uses might include farming, tourism, camping, residential development, and commercial development. It should be noted that the Supreme Court, which has expressed that it prefers not to lay out per-se rules for deciding takings claims,8 has also expressed some discomfort with the logic of the rule that measures the extent of the deprivation against the parcel as a whole.9 Still, the Supreme Court has not changed the rule.10 3) Exaction Takings When government requires a property owner to make a concession in exchange for a land-use permit, there can be a type of taking referred to as an exaction. It is in the area of exactions that the courts most expressly engage in both evaluating the method by which government achieves its goals, and balancing the benefits and burdens of the regulation. As a result, not every instance of requiring a concession results in a taking. Exaction claims arise in the context of discretionary land-use permits, in other words, where an owner has applied for a use permit and the land-use agency has the discretion to say no. Where the agency, rather than saying no, requires some concession from the landowner, Courts have found a taking if there is not a sufficiently close relationship between the potential harm from granting the land-use permit, and the beneficial effects of the concession that the land-owner is required to make.11 In addition, even if a sufficient connection exists between the potential harm and the concession, if the relative burdens and benefits of the potential harm and

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the concession are not roughly proportional, there may be a taking.12 Together these two standards are referred to as Nollan/Dolan for the cases that defined them. In Nollan v. California Coastal Commission,13 a beach-front property owner sought to develop its land. Because the development would block the publics view of the beach, the government conditioned allowing the development on the property owner granting a public access easement across its land to the beach. The Supreme Court held that requiring an access easement as a condition of allowing the development was a taking. The Court found there was not a sufficient connection between blocking the publics view of the beach, and granting an access easement across the beach. The Court stated that other restrictions on the development such as height and width limitations could have served the same purpose of protecting the publics view. In Dolan v. City of Tigard,14 the land owner sought to expand a store and parking lot that were located within a 100-year flood plain. The government required the land owner both to improve storm drainage and to construct a pedestrian and bike path on the owners land. The required concessions arguably were related to the potential harm of increased traffic and increased storm-water runoff that would result from expanding the store and parking lot. Nonetheless, the Supreme Court found a taking because the burden to the landowner of these concessions was not roughly proportional to the potential harm of increased traffic and stormwater runoff. Importantly, the Dolan rough proportionality test does not apply where the government completely denies a land-use or development permit. The Supreme Court has held that rough proportionality only applies in cases where the government exacts a concession from the property owner in exchange for a land-use or development permit.15 Since zoning regulations

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which prohibit specified activities, by their very nature do not exact concessions in return for land-use permits, such zoning regulations would not be a taking under the exaction line of cases. In New York, application of Nollan/Dolan has resulted in one case in which the Court of Appeals unanimously held that a towns requirement that subdivision developers pay a per-lot recreational user fee was subject to Nollan/Dolan exaction analysis, and under that analysis, upheld the fee. Yet a year later, the Court of Appeals split 4-3 in holding that a towns requirement that property owners whose land was already subject to restrictive development regulations enter into a conservation easement was not an exaction. In the first case, Twin Lakes Development Corp. v. Town of Monroe,16 the town required that any subdivision of over five lots either dedicate park land to public use, or pay a per-lot recreation fee in lieu of the dedication. This was held to be permissible. The Court analyzed the towns requirements under Nollan/Dolan, and found that the payment of a recreation fee was sufficiently connected to the additional burden that a new subdivision would impose on the towns recreational spaces, and was roughly proportional to the increased burden on the towns recreational spaces. In the split decision, Smith v. Town of Mendon,17 some portions of the landowners parcel were subject to severe development restrictions designed to protect environmentally sensitive areas, and the remainder was not subject to the restrictions. When the owners sought town planning board permission to build a house on the non-restricted portion of their land, the town conditioned its permission on the landowners entering into a conservation easement for the already-restricted parts of their land. The conservation easement would have imposed somewhat

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more restrictive limitations on the landowners ability to develop the environmentally sensitive parcels than existed under the towns regulations. The four-judge majority stated that exactions have been found only where the property owner is required to dedicate property to public use and thereby give up the important right to exclude others from the property, or to pay a fee in lieu of such a dedication. Because the conservation easement was not a dedication of property to public use, in large part because the owners retained the right to exclude the public from the land, there was no exaction and the towns requirement was found to be permissible. Two of the three dissenting judges believed that the conservation easement was in fact a dedication of property to public use, and therefore an exaction had occurred.18 These two cases show that, despite what appears to be relatively clear standards for what is an exaction and when an exaction is allowable, there is still uncertainty in the law. Still, town boards that are considering zoning changes can be mindful that exaction cases are a narrow class of cases that come up when a land owner seeks a permit under an existing zoning scheme. Exaction analysis does not apply to broader issues of whether a zoning laws prohibition of a use or class of uses results in a taking. 4) Penn Central Goes Too Far Takings A zoning regulation which goes too far can be found to be a taking.19 This area of takings law is the least well-defined: there are no set formulas for deciding when a regulation has gone too far. Indeed, the Supreme Court prefers not to have any set formula or per-se rules for this type of takings claim.20 Instead the courts have created guidelines. As the Supreme Court has stated, the guidelines are intended to determine if a regulatory action is functionally equivalent to the classic taking in which government directly appropriates

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private property or ousts the owner from his domain.21 Land use and zoning regulations typically do not appropriate private property, either directly, or by requiring the owner to allow others to use it, 22 or by depriving the owner of all economically beneficial use. By equating going too far with directly appropriating property, the Supreme Court made it clear that the line of what is too far is a long way from ordinary zoning laws that only determine the allowable uses of property. In Penn Central Transportation Co. v. City of New York, the Supreme Court established that, in deciding if a zoning or other regulation has gone too far, courts are to look at the economic impact of the regulation on the land owner. In particular, courts look at the extent of the regulations interference with distinct, investment-backed expectations of the land owner.23 As New Yorks Court of Appeals put it in Spears v. Berle, decided a year after Penn Central, to meet an owners burden of proof on a takings claim, the owner should produce dollars and cents evidence as to the economic return that could be realized under each permitted use and must show that the economic value, or all but a bare residue of the value, of the parcel has been destroyed . . .. 24 An owners mere generalities about intended use, not backed up with money spent toward that use, will not support a takings claim.25 Early Supreme Court takings cases and subsequent New York Court of Appeals cases looked at how well the government regulation achieved its purpose; i.e. whether the regulation substantially advances a legitimate state interest.26 However, in Lingle v. Chevron U.S.A., Inc.27 the Supreme Court expressly stated that whether the regulation substantially advances a legitimate state interest is a due process-type inquiry that is not part of the evaluation of a takings claim. In Consumers Union of U.S., Inc. v. State,28 decided a month after Lingle, the New York Court of Appeals recognized that whether the regulation substantially advances a legitimate state

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interest is no longer a takings test, and that the primary inquiry is the extent to which the regulation interferes with distinct investment-backed expectations.29 Thus, while a takings claim may examine how the burden of a regulation is shared among property owners, a takings claim does not closely examine how well the government action achieves its purpose. The focus is on the severity of the burden that the regulation imposes on private property rights.30 New York courts have applied these principles to require a very high standard of proof from a property owner, in effect providing substantial protection to local zoning authorities. In order to prove a taking, New York courts require the property owner to show with dollars and cents evidence that under no permissible use would the parcel as a whole be capable of producing a reasonable return,31 and would not be adaptable to any other suitable private use.32 In addition, New York courts have stated that the land owner must prove every element of its claim beyond a reasonable doubt.33 Penn Centrals requirement to look at the distinct, investment-backed expectations of a land owner has a practical effect. A takings claim cannot be based merely on an owners belief that a property interest was available for development. New York courts have called this claim simply untenable.34 What examples are there of successful goes too far takings claims in New York? Fred F. French Investment Co. v. City of New York35 is an early example, coming before Penn Central. In Fred F. French, the City rezoned as a special public parks district, two private parks that a developer had created at the Tudor City housing development. The effect of the rezoning was to take away all control that the developer had over the formerly private parks, open them to public use, and leave the developer with bare title. The rezoning thereby prohibited all

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reasonable income-producing or other private use of the property. The Court of Appeals found the zoning ordinance unconstitutional. Notably, the Court did not find that the owner was entitled to compensation, because the government had not encroached on the land with trespassory consequences that are largely irreversible.36 In Seawall Associates v. City of New York37 the Court of Appeals struck down a law intended to preserve single-room occupancy housing in New York City. The law required owners of SRO buildings to, among other things, rehabilitate vacant units and offer them for rent. The Seawall Court found a goes too far taking on two grounds. The first ground was that the statute substantially impaired the value of the owners property and denied the owner the right to commercial development of the property, which the Court believed was the sole use for which the property was purchased.38 The other ground was that the statute did not substantially advance legitimate state interests.39 This latter ground, as noted, has since been abandoned by the U.S. Supreme Court.40 The Court also found that the law caused a Loretto-style per se taking, because the mandatory rent-up provision would result in the forced occupancy of the owners building, a drastic interference with the owners fundamental rights to possess and to exclude.41 In contrast to Seawall Associates, in Rent Stabilization Association of New York City v. Higgins42 the Court of Appeals declined to find that a regulation that expanded the definition of who was a family member entitled to succession rights under rent stabilization resulted in a taking. The Court distinguished Seawall Associates on the basis that the property owners in Seawall Associates, who were compelled to rent out their property as SRO rooms, had not voluntarily acquiesced in the use of their property as rental housing, while the owners in Rent

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Stabilization Association had.43 (Frankly, it is difficult to see how one who purchases an SRO building has to any lesser degree acquiesced in the rental occupancy of the building, than one who purchases an apartment building with rent stabilized tenants.) Manocherian v. Lenox Hill Hospital44 involved another attempted modification of New York Citys rent regulation scheme. In Manocherian, owners of apartment building had leased residential units to non-profit hospitals, which in turn sub-leased the units to their staff, presumably at below-market rents. A statute required the building owners to offer renewal leases to the hospitals despite the fact that the hospitals, in particular Lenox Hill, did not occupy the apartments as a primary residence. The statute also granted the hospitals blanket permission to sublet to their staff without the owners consent, in contradiction to the existing subletting provisions of the rent stabilization laws.45 The Court found the statute unconstitutional, relying on the substantially advances a legitimate state interest test. The Court found that the statute did not advance the goals of rent regulation and merely served to benefit one special class.46 As the dissent pointed out, the owners did not make any showing that they had suffered any economic loss to their investment.47 It is questionable, at a minimum, whether the Court would have reached the same result after the Supreme Court had abandoned the substantially advances test. As an example of an

unsuccessful takings claim, in Briarcliff Associates v. Town of Cortlandt,48 the owner purchased land that was being used as an emery mine (as a pre-existing non-conforming use), with the intent to open a crushed stone quarry. Three years later, before the owner had obtained a DEC permit to operate the quarry, the town rezoned the land as residential. The town also passed a law that prohibited heavy trucks on the only road leading to the site.

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The owners takings claim was denied. The court held that the owner had not proved beyond a reasonable doubt that it could not develop the land for residential use (which the zoning allowed). The court also denied the takings claim because the owner could have continued to operate the emery mine and obtained economic return from that operation. In short, the land still had economic value. The fact that the income from the emery mine was much less than the potential income from a crushed stone quarry did not establish a taking. A mere loss of anticipated value, in one case as much as an 80% loss, does not establish a taking. As an example, in Putnam County National Bank v. City of New York49 a bank acquired title to an undeveloped parcel in a foreclosure proceeding. After the bank obtained permission for a subdivision from local authorities, the New York City Department of Environmental Protection enacted comprehensive watershed regulations. Under DEPs watershed regulations, the subdivision could no longer have a central sewer system, and a water pollution discharge permit was revoked. These changes in regulation forced the bank to pursue an alternative proposal that had many fewer subdivision lots and that reduced the value of the subdivision by 80%. The court found that the 80% reduction in value did not result in a taking. The court stated that a reasonable land use restriction is not rendered unconstitutional merely because it causes the propertys value to be substantially reduced.50 In sum, the standards for judging a whether a regulation goes too far are not as definite as those applied to a claim of physical taking or total taking. Still, local zoning authorities should be secure that a reasonable zoning ordinance will not be a taking unless it destroys virtually all of a parcels economic value.

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Pre-Existing Use or Grandfather Takings Newly-enacted zoning ordinances that would prohibit the continuation of a pre-existing

use result in a type of taking. The pre-existing use need not be fully operational in order to obtain such grandfather protection. Rather, if an owner obtains a permit or local permission to engage in a particular use, invests significant money toward that use, and takes meaningful steps to develop the land for the use in reliance on the permit, the owner may be found to have a preexisting use. The use would then be exempt from a later-enacted zoning ordinance that would otherwise prohibit the use. While a land-owners remedy in these grandfather cases is typically to obtain a use exception,51 in some cases significant damages have been awarded.52 The New York Court of Appeals has stated as the general rule that: a nonconforming use of real property that exists at the time a restrictive zoning ordinance is enacted is constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance.53 In order to obtain non-conforming use protection, the owner must show that the property was indeed used for the nonconforming purpose, as distinguished from a mere contemplated use, at the time the zoning ordinance became effective.54 As an example, in Glacial Aggregates LLC v. Town of Yorkshire55 an owner acquired land to develop as a quarry at a time when the local town had no zoning law. The owner invested substantial time and money in obtaining a permit from DEC to mine, which required a full environmental impact statement and much testing and study of hydrogeology, soil, traffic, wetlands, and human impacts. The owner dug numerous test pits, and cleared land for mining and for road construction. Then, the town adopted a zoning ordinance that banned mining in the area where the owners land was located. Initially, the town recognized the owners DEC permit and took the position that the

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owner had the right to mine, despite the new zoning. The town then reversed itself, on the basis that no actual mining operations had occurred before the new zoning went into effect. The Court of Appeals, however, found that the substantial steps taken by the owner, specifically toward mining, at significant cost, amounted to pre-existing use. Importantly, actual operation of a gravel quarry was not required in light of the many specific steps, clearly identifiable with preparing to operate a quarry, that were taken by the landowner. In another recent case, Jones v. Town of Carroll,56 the owners of a 50-acre site had a DEC permit to operate a landfill on 3 acres. A new zoning ordinance barred operation of a landfill on the site, and the town sought to apply the ordinance to the portion of the site that was not covered by the 3-acre permit. The Court ruled that despite the fact that the owners DEC mining permit only covered 3 acres out of a 50-acre site, the entire site was subject to protection as a pre-existing non-conforming use. The Court noted that mining and landfill cases present a unique situation where the land itself is a resource that will be consumed over time, and is not merely incidental to the activities conducted upon it. For this reason, an owner can be expected to hold some portion of the land in reserve for future expansion. By contrast, in Preble Aggregates v. Town of Preble57 an owner filed for a mining permit for a 25-acre tract. Following litigation that overturned a prior zoning law (because the zoning law impermissibly regulated mining), the town passed a zoning ordinance that prohibited all mining in the area where the tract was located. The owner sued, claiming it had vested rights to operate the mine. The courts held for the town and denied the takings claim, because the owner 1) had not caused substantial changes to the tract, 2) at substantial expense, 3) in reliance on a legally issued permit.

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And in Mar-Vera Corp. v. Zoning Board of Appeals of the Village of Irvington 58 a developer had permission to build 27 single family homes and 14 townhouses on a parcel. The developer built the single-family homes but not the townhouses. The village then passed new zoning ordinances which required an increased level of site plan review. The town advised the owner that the owner had to comply with these new ordinances in order to construct the townhouses. The owner sued to avoid having to comply with the new zoning requirements, claiming it was grandfathered as to the townhouses. The court denied the owners suit because the townhouses were merely contemplated. A moratorium on development enacted as an interim measure to provide a town time to develop its zoning ordinance, can avoid grandfather-type takings claims.59 However, a town which in bad faith delays acting on a permit application, so that the town can have the time to pass a zoning ordinance, may find itself barred from enforcing that ordinance against the applicant who was unjustly delayed. For example, in Golden Horizon Terryville Corp. v. Prusinowski60 the land owner claimed that the town had delayed nearly two years from the owners initial site plan application, and approximately 10 months from a revised application, before enacting a moratorium that would bar the proposed development. The owner also claimed that its development was as-ofright, but for the moratorium. The court held that these facts, if proved at trial, would make out a case of bad faith that would prevent the town from enforcing the moratorium as to the landowner. In contrast to Golden Horizon Terryville, in Preble Aggregates v. Town of Preble61 the town had adopted a zoning ordinance that would prevent the owners proposed mining operations. The owner succeeded in having that ordinance declared invalid by a trial court, the

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town appealed, and the appellate court upheld the ruling that the ordinance was invalid. The town then adopted a new, valid ordinance. The owner claimed that the towns appeal of the earlier decision amounted to bad faith delay. This claim was rejected by the appellate court, which found that the town was entitled to fight the owners application with unrelenting determination. 62 The lesson from the grandfather/takings cases is that, once a party has obtained a permit, incurred significant expense, and altered the land in furtherance of its planned operations, a later enacted zoning ordinance cannot be enforced against that owner. This is a fairly clear standard. Since town boards that wish to restrict the use of land within the town may need time to enact a proper zoning ordinance, adoption of a moratorium for a reasonable time, rather than simply delaying the processing of permit applications, is a preferable course of action.

Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450 (N.Y. Sup. 2012) and Cooperstown Holstein Corp. v. Town of Middlefield, 35 Misc. 3d 767 (N.Y. Sup. 2012). The state law in question is the Oil, Gas, and Solution Mining Law and its supercession provision, contained within E.C.L. 23-0303. 2 The text of the Fifth Amendment is: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (underline added) 3 458 U.S. 419 (1982) 4 Seawall Associates v. City of New York, 74 N.Y.2d 92, 103 (1989) 5 505 U.S. 1003 (1992) 6 Smith v. Town of Mendon, 4 N.Y.3d 1 at fn. 12 (2004); 7 480 U.S. 470, 497 (1987), quoting Penn Central Transportation Co. v. City of New York, 438 U.S. 104 at 130 -- 131 8 See, e.g., Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321, (2002); Palazzolo v. Rhode Island, 533 U.S. 606, 636 (2001) 9 See, Palazzo v. Rhode Island, 533 U.S. 606, 631 632 (2001).

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See, e.g., Wonders v. Pima County, 207 Ariz. 576, 581 (2004); Walcek v. United States, 303 F.3d 1349, 1354-1355 (Fed. Cir. 2002). 11 Nollan v. California Coastal Commission, 483 U.S. 825 (1987) The Court called the required connection an essential nexus. 12 Dolan v. City of Tigard, 512 U.S. 374 (1994) 13 483 U.S. 825 (1987) 14 512 U.S. 374 15 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999); Twin Lakes Development Corp. v. Town of Monroe, 1 N.Y.3d 98, 105 (2003); Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 94 N.Y. 96, 106 107 (1999) 16 1 N.Y.3d 98 (2003) 17 4 N.Y.3d 1 (2004) 18 The third dissenting judge believed that, in view of the already-existing restrictions on development, imposing the conservation easement did not substantially advance legitimate governmental interests. The Supreme Court later abandoned the test of whether the regulation substantially advances a legitimate interest. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) 19 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) 20 See, Palazzo v. Rhode Island, 533 U.S. 606, 633 636 (2001) (OConnor, concurring) 21 Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 at 528 (2005) 22 E.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (discussed above at pp. 2-3) and Seawall Associates v. City of New York, 74 N.Y.2d 92, 103 (1989) (discussed within at pp. 10-11) 23 438 U.S. 104 (1978) 24 48 N.Y.2d 254, 262 (1979), quoting Matter of National Merritt v. Weist, 41 N.Y.2d 438, 445 446. 25 See, e.g., Spears v. Berle, 48 N.Y.2d 254 (1979); Briarcliff Associates v. Town of Cortlandt, 272 A.D.2d 488 (2000) as examples of the exacting standards to which landowners are held. 26 E.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) 27 544 U.S. 528 (2005) 28 5 N.Y.3d 327 (2005) 29 The Court of Appeals stated: Governmental regulation of private property effects a taking if it is so onerous that its effect is tantamount to a direct appropriation or ouster ( see Lingle, 544 U.S. at 537). To determine whether a regulation is proper or goes too far, a court must consider the factors identified in Penn Central Transp. Co. v. New York City, 438 U.S. 104 [1978]; see Lingle, 544 U.S. at 545 [holding, for the first time, that the substantially advance legitimate state interests test identified in Agins v. City of Tiburon, 447 U.S. 255, 260 [1980] is not a valid method of identifying regulatory takings]. The primary, but not exclusive Penn Central inquiry turns on the extent to which the regulation has interfered with distinct investment-backed expectations (544 U.S. at 539 [quoting Penn Central, 438 U.S. at 124] ). 5 N.Y.3d at 357. 30 Lingle v. Chevron U.S.A., Inc., 544 U.S. at 539 545 31 Briarcliff Associates v. Town of Cortlandt, 272 A.D.2d 488 (2000) 32 Spears v. Berle, 48 N.Y.2d 254 (1979) 33 De St. Aubin v. Flacke, 68 N.Y.2d 66, 76 77 (1986); Briarcliff Associates, supra, 272 A.D.2d at 490

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Briarcliff Associates, supra, 272 A.D.2d at 491, citing Penn Central, 438 U.S. at 130. 39 N.Y.2d 587 (1976) 36 39 N.Y.2d at 595. 37 74 N.Y.2d 92 (1989) 38 74 N.Y.2d at 108 109 39 74 N.Y.2d at 110 111 40 See discussion at n. 27, above. 41 74 N.Y.2d at 102, 106 42 83 N.Y.2d 156 (1993) 43 83 N.Y.2d at 171 172 44 84 N.Y.2d 385 (1994) 45 84 N.Y.2d at 389 391. Generally under rent stabilization, a tenant may only sublease for two years out of a four year period. Here Lenox Hill, the tenant, was in effect subleasing perpetually. 46 84 N.Y.2d at 394, 396 397, 399 400 47 84 N.Y.2d at 400 48 272 A.D.2d 488 (App. Div. 2000) 49 37 A.D.3d 661 at 663 (2007) 50 Putnam County National Bank v. City of New York, 37 A.D.3d 661 at 663 (2007) 51 E.g., Jones v. Town of Carroll, 15 N.Y.3d 139 (2010) 52 E.g., Glacial Aggregates LLC v. Town of Yorkshire, 14 N.Y.3d 127 (2010) 53 Jones v. Town of Carroll, 15 N.Y.3d 139, 143 (2010), quoting Glacial Aggregates LLC v. Town of Yorkshire, 14 N.Y.3d 127 (2010) 54 Mar-Vera Corp. v. Zoning Board of Appeals of the Village of Irvington, 84 A.D.3d 1238, 1239 (2011); Jones v. Town of Carroll, 15 N.Y.3d at 143 55 14 N.Y.3d 127 56 15 N.Y.3d 139 (2010) 57 263 A.D.2d 849 (1999) 58 84 A.D.3d 1238 (2011) 59 Golden Horizon Terryville Corp. v. Prusinowski, 63 A.D.3d 930 (2009) (Court considered a moratorium on development as part of the zoning laws in existence at the time the Planning Board determined a developers permit application.); 119 Development Associates v. Village of Irvington, 171 A.D.2d 656 (1991) (moratorium a reasonable measure to halt development while town considered comprehensive zoning changes); Dune Associates, Inc. v. Anderson, 119 A.D.2d 574 (1986) (same). 60 63 A.D. 3d 930 (App. Div. 2009) 61 263 A.D.2d 849 (App. Div. 1999) 62 263 A.D.2d at 850
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