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PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY.

The Second Department determined the Court of Claims properly dismissed claimant’s cause of action alleging a state watershed regulation prohibiting septic systems within 300 feet of a lake amounted to an unconstitutional taking of the property (because it could not be developed):

The Takings Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment … , provides that private property shall not “be taken for public use, without just compensation” (US Constitution Amendment V). The Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking” … . In addition to physical takings, the United States Supreme Court has recognized that “government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster— and that such regulatory takings’ may be compensable under the Fifth Amendment” … .

The United States Supreme Court has “generally eschewed” any set formula for identifying regulatory takings, choosing instead to engage in ” essentially ad hoc, factual inquiries'” considering a number of factors … . However, it has recognized two categories of regulatory action that will be deemed per se takings for Fifth Amendment purposes, without the need to engage in case-specific inquiries: (1) regulations that compel the property owner to suffer a permanent physical invasion of the property, and (2) regulations that completely deprive an owner of “all economically beneficial us[e]” of the property … .

Here, in support of its motion for summary judgment, the claimant failed to establish, prima facie, that the subject property has suffered a complete elimination of value as a result of the watershed regulations… . Monroe Equities, LLC v State of New York, 2016 NY Slip Op 08206, 2nd Dept 12-7-16

 

REAL PROPERTY (PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY)/EMINENT DOMAIN (PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY)/REGULATORY TAKING (PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY)

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