Smith v. Town of Mendon

822 N.E.2d 1214, 4 N.Y.3d 1, 789 N.Y.S.2d 696, 35 Envtl. L. Rep. (Envtl. Law Inst.) 20001, 59 ERC (BNA) 2133, 2004 N.Y. LEXIS 3854

Opinions

OPINION OF THE COURT

Rosenblatt, J.

This appeal calls on us to determine whether a municipality commits an unconstitutional taking when it conditions site plan approval on the landowner’s acceptance of a development restriction consistent with the municipality’s preexisting conservation policy. We hold that it does not.

L

Paul and Janet Smith own a 9.7 acre lot in the Town of Hen-don. Situated along Honeyoe Creek, a protected waterway, the lot includes several environmentally sensitive parcels, falls within the creek’s 100-year floodplain boundary and is located within 500 feet of a protected agricultural district. It also contains a woodlot and steep sloping areas susceptible to erosion. Several portions of the property sit within areas classified as environmental protection overlay districts (EPODs), pursuant to section 200-23 of the Hendon Town Code.

Four separate EPODs limit the Smiths’ use of their property. The first, a “Steep Slope” EPOD, bars the construction of new buildings or structures, the clearing of any land area, the installation of sewage disposEd systems, the discharge of stormwater and the placement of stormwater runoff systems, and filling, cutting or excavation operations within the designated district. Property owners may acquire development permits for projects within a Steep Slope EPOD if they can show that their proposed activities will not destabilize the soil, cause erosion or unnecessarily destroy ground cover. They must further demonstrate that there is no reasonable alternative for the proposed activity.

The other three EPODs apply to sensitive lands bordering a major creek, an established wooded area and a floodplain. All contain comprehensive use restrictions similar to the Steep Slope EPOD. As a prerequisite for issuance of a development permit, all require specific showings that the proposed activity will not result in injuries to the covered, environmentally sensitive districts.

In December 2001, the Smiths applied to the Town Planning Board for site plan approval to construct a single-family home on the non-EPOD portion of their property. Following various proceedings, the Planning Board issued a final site plan approval in July 2002. The Board concluded that the Smiths’ proposal was not likely to result in any adverse environmental impacts as long as no development occurred within the EPOD portions of the site. It conditioned final site plan approval on the Smiths’ filing a conservation restriction on any development within the mapped EPODs and amending the final site plan map accordingly. Such action, the Planning Board stated, would “put subsequent buyers on notice that the property contains constraints which may limit development within these environmentally sensitive areas.” The Board also determined that the restriction would provide the most meaningful and responsible means of protecting the EPODs.

The conservation restriction sought by the Town closely tracked the limitations set by the EPOD regulations. Under the restriction, which would run with the land and bind subsequent owners, the Smiths would be prohibited in the EPODs from ‘¹ [c]onstruction, including, but not limited to structures, roads, bridges, drainage facilities, barns, sheds for animals and livestock and fences,” the “[cjlear-cutting of trees or removal of vegetation or other ground cover,” changing the “natural flow of a stream” or disturbing the stream bed, installing septic or other sewage treatment systems, and using motorized vehicles.

The restriction also required the Smiths to maintain the “Restricted Area” in accordance with the terms of their grant and permitted the Town, upon 30 days’ written notice, to enter the property to safeguard the environmentally sensitive parcels. The Smiths, their successors and their assigns, however, retained their rights to “full use and quiet enjoyment” of the EPODs. Critically, they retained the right to exclude others from the entirety of their 10-acre parcel.

The terms of the proposed “Grant of Conservation Restriction” mirrored the preexisting EPOD regulations, differing in only a few respects. First, the conservation restriction encumbered the servient property in perpetuity, whereas the Town could amend its EPOD ordinance. Under both the EPOD system and the conservation restriction, however, the Smiths could seek permission from the Town to conduct a proscribed activity in the environmentally sensitive parcels. Second, the conservation restriction afforded the Town greater enforcement power. Under the EPOD regime, the Town could only issue citations for violations, whereas with the conservation restriction, it could seek injunctive relief.

Rejecting the proposed conservation restriction, the Smiths commenced this hybrid declaratory judgment/CPLR article 78 proceeding, asserting that the restriction worked an unconstitutional taking.¹ The Town moved for an order dismissing or granting summary judgment against the Smiths’ claims. Applying Dolan v City of Tigard (512 US 374 [1994]), Supreme Court concluded that, although the conservation restriction was an “exaction,” it did not effect an unconstitutional taking. The Smiths appealed.

The Appellate Division determined that Supreme Court erred in characterizing the conservation restriction as an exaction. It affirmed, however, holding that, because the proposed conservation restriction bore a reasonable relationship to the Town’s objective of preserving the environmentally sensitive EPODs, there was no taking entitling the Smiths to compensation (see 4 AD3d 859 [4th Dept 2004]). The Smiths appeal as of right from the Appellate Division order, and we now affirm.

IL

The Fifth Amendment to the United States Constitution provides “nor shall private property be taken for public use, without just compensation.”² Historically, takings jurisprudence involved instances in which the government encroached upon or occupied real property for public use.³ Beginning with Pennsylvania Coal Co. v Mahon (260 US 393 [1922]), the Supreme Court recognized that, even if the government does not seize or occupy a property, a governmental regulation can work a taking if it “goes too far” (id. at 415).

In the years following Mahon, the Supreme Court offered “some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking” (Palazzolo, 533 US at 617). The first and perhaps most critical factor in the Court’s takings analyses became whether the regulation deprived landowners of “all economically viable use” of their property.⁴

If the contested regulation falls short of eliminating all economically viable uses of the encumbered property, the Court looks to several factors to determine whether a taking occurred, including “the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.”^{5 6}In a different formulation of this third factor, the Supreme Court held in Agins v City of Tiburón (447 US 255, 260 [1980]) that the “application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests” (see also Bonnie Briar Syndicate v Town of Mamaroneck, 94 NY2d 96 [1999]).®

Styling the conservation restriction an exaction, the Smiths argue that we should not review the Town’s action under the Penn Central/Agins standard. We disagree. Exactions are defined as “land-use decisions conditioning approval of development on the dedication of property to public use” (City of Monterey v Del Monte Dunes at Monterey, Ltd., 526 US 687, 702 [1999] [emphasis added]). In a narrow, readily distinguishable class of cases, the Court has held such conditions unconstitutional.

In Nollan v California Coastal Commn. (483 US 825 [1987]), the Court considered whether conditioning a development permit on the property owners’ transfer to the public of an easement across their beachfront violated the Takings Clause. The Court deemed the condition unconstitutional because it lacked an “essential nexus” (id. at 837) with the stated purpose of the underlying land-use restriction—“protecting the public’s ability to see the beach, assisting the public in overcoming the ‘psychological barrier’ to using the beach created by a developed shorefront, and preventing congestion on the public beaches” (id. at 835). Nevertheless, the Court noted that the government could have conditioned the grant of a development permit on restrictions that promoted the public’s ability to see and psychologically access the beach, such as height limitations, width restrictions, and the like (id. at 836).

In Dolan v City of Tigard (512 US 374 [1994]), the Supreme Court added a second layer to the “essential nexus” test— “rough proportionality.” In Dolan, the municipality conditioned approval of a building permit on the landowner’s dedication of, first, a portion of her property lying within a 100-year floodplain for improvements to a storm drainage system and, second, a strip of land adjacent to the floodplain for use as a pedestrian and bicycle path. The Court concluded that an essential nexus existed between these development conditions and a legitimate governmental purpose, but nevertheless determined that the municipality’s proposed exactions were impermissible under a “rough proportionality” standard (id. at 391).

A showing of rough proportionality, the Court ruled, requires a municipality to “make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development” (id.). A “precise mathematical calculation” is not required (id.). The exactions at issue were not roughly proportional, the Dolan court reasoned, because the municipality had failed to meet its burden of showing the impact of the proposed construction on its flood and traffic abatement efforts. The Court stressed, however, that the municipality could, for instance, have conditioned the grant of a development permit on the transfer of a pedestrian/bicycle pathway easement if it had made “some effort to quantify its findings” that the construction would generate more traffic {id. at 395). In other words, a municipality could place otherwise unconstitutional conditions on the issuance of a regulatory permit if the condition furthered the purpose of the underlying development restriction and there was a rough proportionality between the condition and the impact of the proposed development.

With City of Monterey v Del Monte Dunes at Monterey, Ltd. (526 US 687, 702 [1999]), the Court placed a key limitation on Dolan, indicating that the “rough proportionality” test did not apply beyond the special context of exactions. The Court added that the test was not “designed to address, and is not readily applicable to” a case in which the landowner’s challenge is based on denial of development, as opposed to excessive exactions {id. at 703).

¡IL

The Attorney General has submitted an amicus brief arguing for affirmance, cogently pointing out that the present case involves efforts by the Town of Mendon to protect environmentally sensitive lands by means of a “do-no-harm” restriction that involves no property dedication of the type encountered in Nollan and Dolan. We agree. Under the Supreme Court’s doctrinal framework, the Appellate Division correctly determined that the Town’s conservation restriction was not an “exaction” subject to the closer scrutiny of the Dolan test.⁷ In City of Monterey (526 US at 702), the Court observed that an exaction involves the conditioning of a land-use decision on the “dedication of property to public use” (emphasis added).

There is no such dedication of “property” here. In practice, the Court has identified exactions in only two real property cases, Nollan and Dolan, both of which involved the transfer of the most important “stick” in the proverbial bundle of property rights, the right to exclude others.⁸ In Twin Lakes Dev. Corp. v Town of Monroe (1 NY3d 98 [2003]), we also characterized a fee imposed in lieu of the physical dedication of property to public use as an exaction. Outside of these two narrow contexts, neither the Supreme Court nor this Court has classified more modest conditions on development permits as exactions. Thus, we decline the Smiths’ invitation to extend the concept of exaction where there is no dedication of property to public use and the restriction merely places conditions on development.

The Smiths argue that by its conservation restriction the Town is requiring them to surrender the right to seek a variance under the particular procedures of the EPOD regime. On the record before us, we are not persuaded that this can properly be characterized as the relinquishment of a property right. If it is a property right, however, it is trifling compared to the rights to exclude or alienate.⁹ Under the “Grant of Conservation Restriction,” the Smiths could still apply to the Town for permission to conduct prohibited activities within the “Restricted Area.”

Under the circumstances of this case, the difference between the Smiths’ rights under the EPOD ordinance and the conservation restriction is subtle: section 200-23 of the Hendon Town Code affords the Planning Board wide discretion in granting development permits within EPODs; by contrast, under the proposed conservation restriction, the Board would have essentially unfettered discretion to grant or deny such permits. The right to seek a variance from a planning board that enjoys broad, as opposed to unmitigated, discretion may be among the more modest and fragile twigs in the bundle of property rights, if it is a property right at all. To be sure, conditioning a development permit on its surrender should not trigger the same constitutional scrutiny as the regulatory extortion of sticks far more integral to the bundle, such as the right to exclude third persons (a right the Smiths fully retain).¹⁰

IV

Because the Town’s development condition is not an exaction, we review it according to the standard enunciated by the Court in Agins v City of Tiburon (447 US 255 [1980]; see also Penn Cent. Transp. Co. v City of New York, 438 US 104 [1978]), as opposed to Dolan's rough proportionality test. Examined in this light, the conservation restriction does not effect an unconstitutional taking.

First, the restriction would not appreciably diminish the value of the Smiths’ property, let alone deny them economically viable use of it—as demanded by Agins (447 US at 260).* ¹¹ In exchange for their acceptance of the restriction, the Smiths would garner a permit to construct a single-family home on their property.¹² A single dwelling on a protected, 10-acre parcel is a valuable, marketable asset. Indeed, it is not clear that the conservation restriction would have any effect whatsoever on the market value of the Smiths’ property. Given the development bar created by the preexisting EPOD ordinance, the legitimacy of which the Smiths do not challenge, the encumbered parts of the property had almost no developmental value before the Town announced the conservation restriction. Second, the conservation restriction substantially advances a legitimate government purpose— environmental preservation. As we indicated in Bonnie Briar Syndicate, Inc. v Town of Mamaroneck (94 NY2d 96,108 [1999]), a regulatory action need only be reasonably related to a legitimate governmental purpose to satisfy the “substantially advance” standard.¹³ Such a relationship undeniably exists here. The conservation restriction will advance the Town’s aim of preserving environmentally sensitive areas in perpetuity, place future buyers on notice of the development limitations on the Smiths’ property and furnish the Town with a more effective means of ensuring compliance with its regulatory objectives. In all, and in keeping with preexisting conservation policies, the restriction merely gives the Town the power to interdict harmful activities within the EPODs on the Smiths’ parcel.

In dissent, Judge Graffeo argues that the conservation restriction effects a taking under Agins because, in her view, it advances the Town’s interests only marginally, if at all. We disagree. Ensuring perpetual protection for open spaces—along with the resources and habitats they shelter—from the vicissitudes of workaday land-use battles is hardly an inconsequential governmental interest. At the very least, the permanent character of the conservation restriction will spare the Town the administrative cost of continually being forced to maintain its conservation policies. More importantly, as the Attorney General observes, the conservation restriction imposed by the Town, as a species of negative easement (see Huggins v Castle Estates, Inc., 36 NY2d 427, 430 [1975]), is a “well established land use tool” that is “consistent with the State’s longstanding commitment to protecting . . . critical natural resources” (Attorney General’s brief at 2). Further, even assuming that the marginal benefit to the Town from the conservation restriction were, as Judge Graffeo suggests, modest, it would nonetheless be legitimate. Under the holdings of Agins, Penn Central and their progeny, a modest environmental advancement at a negligible cost to the landowner does not amount to a regulatory taking. The Smiths’ other claims are without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

1 . In addition, the Smiths also sought a judgment declaring that the conservation restriction was, as a matter of law, a conservation easement under ECL 49-0303 (1). They also alleged that the Board’s decision to condition final site plan approval on their acceptance of the conservation restriction was arbitrary and capricious, and sought attorneys’ fees pursuant to Town Law § 282. That section permits a court to award costs to a person or persons aggrieved by a planning board decision if it “shall appear to the court” that the board “acted with gross negligence or in bad faith or with malice in making the decision appealed from.”

2 . The Takings Clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment (see Chicago, B. & Q.R. Co. v City of Chicago, 166 US 226 [1897]).

3 . (See Palazzolo v Rhode Island, 533 US 606, 617 [2001] [discussing the evolution of takings jurisprudence]; see also Loretto v Teleprompter Manhattan CATV Corp., 458 US 419 [1982].)

4 . (City of Monterey v Del Monte Dunes at Monterey, Ltd., 526 US 687, 720 [1999]; see also Palazzolo, 533 US at 617; Lucas v South Carolina Coastal Council, 505 US 1003, 1019 [1992] [“when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking”].)

5 . (Palazzolo, 533 US at 617; see also Penn Cent. Transp. Co. v City of New York, 438 US 104 [1978].)

6 . In spite of their differing language, the Supreme Court has employed the Agins test and Penn Central standard, which the Court invoked in Palazzolo, interchangeably (see e.g. Lucas v South Carolina Coastal Council, 505 [1992]; Keystone Bituminous Coal Assn, v DeBenedictis, 480 US 470, 485 [1987]).

7 . Because the Town’s conservation restriction cannot be classified as an exaction, we need not address the question whether it was roughly proportional to the impact of the development proposed by the Smiths.

8 . Judge Read suggests that the conservation restriction here somehow encumbers the right to exclude because it permits town inspectors to enter the property on 30 days’ written notice or in the event of an emergency threatening the public’s health, safety or welfare (see Read, J., dissenting op at 23). On the facts of this case, we fail to see how the Town’s right to enter the Smiths’ land under a sharply circumscribed set of circumstances to enforce a set of valid regulations impairs the right to exclude or represents a departure from the Town’s ordinary exercise of its police powers.

9 . Although the conservation restriction may, as Judge Read suggests, require the dedication of a possessory interest (see Read, J., dissenting op at 19-20), “property” is constituted by many possessory interests, some of which (e.g., the rights to exclude and alienate) are more central to commonly held understandings of property than others. The Supreme Court’s exactions jurisprudence tracks this conception of property. In Nollan and Dolan, the Supreme Court applied the idea of “exaction” only to the required dedications of a core possessory interest, the right to exclude. As the Attorney General observes, “[b]oth cases hinged on the owners’ loss of perhaps the most important ‘stick’ from the ownership bundle: the ability to restrict access” (Attorney General’s brief at 12-13). Notably, the Supreme Court has never extended its exactions analysis to the dedication of less substantial possessory interests, like those at issue here. Thus, the Appellate Division correctly determined that the conservation restriction is not an exaction within Nollan and Dolan, and we are unwilling to expand the holdings of those decisions to the case before us.

10 . Judge Read mistakenly argues that there is something extraordinary or improper about the Town’s exercise of its police powers here. We disagree. The case before us today concerns only a marginal use restriction superimposed over a wholly legitimate, preexisting EPOD ordinance. There is nothing here that implicates the Fifth Amendment’s concern with “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole” (Armstrong v United States, 364 US 40, 49 [1960]).

11 . (See also Lucas v South Carolina Coastal Council, 505 US 1003 [1992] [holding that a deprivation of “all” economically viable uses of a property works a taking].)

12 . We note that the Supreme Court has been reluctant to engage in spatial “conceptual severance” in determining whether a regulation or government action deprives a property owner of all economically viable uses of the property (District Intown Props. Ltd. Partnership v District of Columbia, 198 F3d 874, 887 [DC Cir 1999]). Hence, we look to the effect of the government action on the value of the property as a whole, rather than to its effect on discrete segments of the property (see Penn Cent. Transp. Co. v City of New York, 438 US 104, 130-131 [1978] [“ ‘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 and extent of the interference with rights in the parcel as a whole”]; see also Keystone Bituminous Coal Assn, v DeBenedictis, 480 US 470, 497 [1987]). Here, the conservation restriction, while reinforcing the preexisting devaluation of a portion of the Smiths’ property, does not begin to deny them all economically viable uses of the entire parcel.

13 . (See also City of Monterey v Del Monte Dunes at Monterey, Ltd., 526 US 687, 701, 721 [1999] [observing that the trial court correctly instructed the jury that “substantially advances” was equivalent to “reasonable relationship”]; Hotel & Motel Assn. of Oakland v City of Oakland, 344 F3d 959, 968 [9th Cir 2003] [“A reasonable relationship exists between this regulatory action and the public purpose it is meant to serve. Thus, the ordinance substantially advances a legitimate government interest.”].)