Opposition Brief — Basile v. Town of Southampton

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No. 96-1852 ~

In The JUN 26 1997

Supreme Court of the Hnityd States

OCTOBER TERM, 1996 —

DOROTHY A. BASILE,

Petitioner,

against

TOWN OF SOUTHAMPTON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE NEW YORK STATE COURT OF APPEALS

BRIEF IN OPPOSITION

WAYNE D. BRUYN

Counsel of Record and

Attorney for Respondent,

Town of Southampton

116 Hampton Road

Southampton, NY 11968

Tel: (516) 287-3065

PRINTINGHOUSE PRESS 25 WEST 43RD STREET NEW YORK, NY 10036 (212) 719-0990

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COUNTER-QUESTIONS PRESENTED

1.

Whether the petition for certiorari should be denied where

the Court of Appeals decision rests on independent and

adequate state grounds - namely that the value of land taken in

condemnation shall reflect the applicable wetland restrictions

where claimant's property interest was encumbered by

covenants entered into by the former owner in exchange for

the right to subdivide and develop what was then a larger

parcel?

2.

Whether the petition for certiorari should be denied where

the Court of Appeals decision poses no conflict regarding a

substantial federal question of federal law, nor conflicts with

the decisions of another state court of last resort, or this Court?

3.

Whether the petition for certiorari should be denied where

neither the Court of Appeals decision, nor the record below

raises the alleged questions presented in the petition?

‘

TABLE OF CONTENTS

Pages

Counter-Questions Presented. ........----++++eeeeee> i

Table of Authorities ..... 2... 0.52 eee eee eee reece ii

Statement of Jurisdiction. ....... 2... +. sees eee ee ress 1

Constitutional Provisions, Statutes and Regulations

Involved in the Case... ........- 2 cece e eee eeees 2

Counter-Statement of Case... ... 2... eee cece eee eeee 2

Statement of Facts... . 2.2... cece cece eee e eee eeeees -

Opinions Below ..........----2eeeeeeeeeeeeeeees 10

Reasons for Denying The Writ...........----+-+++- 14

POINT I

THE DECISION OF THE NEW YORK STATE

COURT OF APPEALS IS BASED UPON

INDEPENDENT AND ADEQUATE STATE

GROUNDS AND THIS COURT SHOULD

THEREFORE DENY THE WRIT FOR LACK OF

_A SUBSTANTIAL FEDERAL QUESTION ..... os

POINT I

THE DECISION OF THE NEW YORK STATE

COURT OF APPEALS POSES NO CONFLICT

REGARDING A SUBSTANTIAL QUESTION OF

FEDERAL LAW, NOR DOES IT CONFLICT WITH

THE DECISIONS OF ANOTHER STATE COURT

ili

OF LAST RESORT, A UNITED STATES COURT

OF APPEALS, OR THIS COURT............... 21

Conclusion ............ ese eeeee cece eee eeeeceees 28

iv

TABLE OF AUTHORITIES

Cases Pages

Allegria v. Keeney, 1997 WL 33587

(RI. Jan. 29, 1997)... .---eeecceeeeerercererceee 23

Anello v. ZBA of Village of Dobbs Ferry,

89 N.Y.2d 535, 184 N.Y.S.2d 656 (1997) .....--++-- 3

Basile v. Town of Southampton, 222 A.D.2d 638,

636 N.Y.S.2d 97 (2n. Dept. 1995) ....---+-+-++- 11

Berwick v. State, 107 A.D.2d 79, 486 N.Y.S.2d

260 (2nd Dept. 1985) ....----eeeeeerereee 10, 15, 16

Berwick v. State, 159 A.D.2d 544, 552 N.Y.S.2d

409 (2nd Dept. 1990)....--++2eeeereeeeee eres 11

Brotherton v. NYSDEC, Case No. 12809-90

Sup.Ct., Suffolk Cty, IAS 8, 2/24/97 .....-- +++ +++% 27

Chase Manhattan Bank, N.A. v. State of New York,

103 A.D.2d 211, 479 N.Y.S.2d 983

Qnd Dept. 1984) ...---0eeeeeeeserseee ees 10, 15, 16

an wal

Ciampitti v. United States, 22 C1.Ct. 310 (1991) ....--. 23

Claridge v. New Hampshire Wetlands Board,

125 N.H. 745, 485 A.2d 287 (1984). .....---+-- orey

Gazza v. NYSDEC, 159 Misc.2d 591, 605 N.Y.S.2d 642,

aff'd. 217 A.D.2d 202, 634 N.Y.S.2d 740

(2nd Dept. 1995) .....0ceseeeeeeeeceeeeeeeeees 12

Gazza v. NYSDEC, 2 No. 10, 1997 WL 68590

(N.Y. Feb. 18,1997) ....0.0ec cece cence eeeee sees 3

v

Grant v. South Carolina Coastal Council,

351U.S. 292 (1956). ..... SH th A ya Oe a ae Ae Se 22

Hynziker v. State of Iowa, 519 N.W.2d 367

International Longshoremen's Ass'n.; AFL-CIO v.

Davis, 476 U.S. 380, 387 (1986). .............. 14, 15

Just v. City of Marinette County, 56 Wisc.2d 7, 201

N.Wi2d FG) CASPER iiaids Sh AALS Ro 22

K & K Construction, Inc. v. Department of Natural

Resources, 217 Mich. App. 56, 551 N.W.2d 413

(Mich. App. 1996), leave to appeal granted

562 N.W.2d 788 (Mich. 1997) .............22008- a

Kim v. The City of New York, 2 No. 8, 1997,

WLS58593, (N.Y. Feb. 18, 1997) ............. eat 3

Lambrix v. Singletary, _U.S._, 1997 U.S. Lexis 2801,

ee ere a eae kd ane 5 as 14

Leonard v. Town of Brimfield, 423 Mass. i532,

666 N.E.2d 1300, cert. denied, _U.S._,

ee ee I 5 vores a 64 6 ba 6 0.0 08 5 0080's ys A

Lopes v. City of Peabody, 417 Mass. 299,

629 N.E.2d B91 AIGOO) oi ois 954.4 Bo oo 'eic p'e she waives 24

Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 112 S.Ct. 2886,

120 L.Ed.2d 798 (1992)...... 12, 13, 18, 19, 20, 21, 25

vi

Matter of Town of Islip v. Mascioli,

49 N.Y.2d 354, 426 N.Y.S.2d 220,

402 N.E.2d 1123 (1980)... ......-cececeees 12, 15, 16

McNulty v. Town of Indialantic, 727 F.Supp. 604

(U.S. Dist. Ct., M.D., Florida, Orlando Div. 1989) . . . 23

Michigan v. Long, 463 U.S. 1032 (1983)........+-- 14, 15

Moroney v. Mayor, 268 N.J. Super. 458, 633 A.2d 1045,

cert. denied, 642 A.2d 1004 (N.J. 1994) ..........-- 26

Nollan v. California Coastal Commission,

483 U.S. 825 (1987) ... 0... ccc e cece cee ee rccees 27

Olson v. United States, 292 U.S. 246, 54 S.Ct. 704,

78 LB. 1236 C9FSR) oc ccc cece ccc csc csccsces 15

Penn Central Transportation Co. v. City of New York,

438 U.S. 104, 98 S.Ct. 2646 (1978)... .....-.5- 56s: 20

Ruckelshaus v. Monsanto Co., 467 U.S. 986,

104 S.Ct. 2862, 81 L.Ed.2d 815 (1984)............ 20

Sibson v. State of New Hampshire,

336 A.2d 239 (1976) .. 2. ccc cccnnccccncereccces 23

Sochor v. Florida, 504 U.S. 527, 533 (1992) ........--- 14

Stevens v. City of Cannon Beach, 317 Ore. 131,

854 P.2d 449 (1993), cert. denied,

510 US. 1207 (1994) . . . occccnccscccccceceses 17, 22

Stupak-Thrall v. United States, 89 F.3d 1269,

1270 (6th Cir. 1996), cert. denied, _U.S._,

136 L.Ed.2d Til (1997)... cece ee cece ee ee ee eees 22

Vii

United States v. 15.65 Acres of Land in Marin County,

COP ae USES CG Cat, TI ovis og bn cceesccces 16

United States v. 69.1 Acres of Land, 942 F.2d 290,

EE oo a ee 17

United States v. 564.54 Acres of Land in Monroe

and Pike Counties, Pennsylvannia, 441 U.S. 506,

99 S.Ct. 1854, 60 L.Ed.2d 435 (1979). ............ 15

United States v. L.E. Cooke Co., Inc., 991 F.2d 336

I oe aR ao bite wee ie ow a 16, 17

Vatalaro v. Department of Environmental Regulation,

601 So.2d 1223 (Sth Dist.Fla., 1992) review den.,

GES BGS Cr eae oe Feo RRC TAB... 26

UNITED STATES CONSTITUTION

NEW YORK STATE CONSTITUTION

Rane &; EF o.8kc ke ee ret 2, 10, 15

STATUTES/REGULATIONS

Se ek POPE iat Pec grits 9

I cia eed Uns bes ee Seaitwe vars 9

Vili

28 USA GIZS Taps oa wesw erie CG lcs wR Hea 1

SF Ugbee PERMAATRSTLEDOETS vicsecccccvcicnaeanber 9

§276, New York State Town Law .................. 18

§277, New York State Town Law .................. 18

§278, New York State Town Law .................. 18

§280-a, New York State Town Law.................. 8

$404 of the Federal Clean Water Act.............000: 9

Environmental Conservation Law, Article 8 ........... 9

Environmental Conservation Law, Article 24 .......... 9

Environmental Conservation Law, Article 25

(Tidal Wetlands Act) .... sce cccscssucece 2.0, 43, £7

Code of the Town of Southampton, amare 157

(av, Quay Review) 65 o0555 655545 or. 9

Code of the Town of Southampton, Chapter 247

Ee Be Ore a 8, 18

Code of the Town of Southampton, Chapter 330

CN 6 5 vin’ 08 Reno cauun bad 554 ane d abs 7

Code of the Town of Southampton, Chapter 292

(SUBGIVINON OE EAMES SB eh cee ec cees 8,18

In The

Supreme Court of the United States

OCTOBER TERM, 1996

DOROTHY A. BASILE,

Petitioner,

against

TOWN OF SOUTHAMPTON .

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE NEW YORK STATE COURT OF APPEALS

=—=————X—__—_

BRIEF IN OPPOSITION

iaeinininieeatideneiainen

STATEMENT OF JURISDICTION

Petitioner Dorothy A. Basile incorrectly invokes the

jurisdiction of this Court under 28 U.S.C. §1257(a). As more

fully explained below, the decision of the New York Court of

Appeals is based solely on a ruling that the valuation of

petitioner's property in a condemnation proceeding shall be

based upon its use as restricted by applicable land use

regulations. Petitioner had no property right recognized by

State law to develop her property since her title was

encumbered by a covenant entered into by the former owner in

exchange for the right to subdivide and develop what was then

a larger parcel. Petitioner's claims under the Fourteenth

2

Amendment of the United States Constitution are new and

were never reviewed by the New York courts.

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED IN THE CASE

Contrary to Petitioner's assertions, the relevant

constitutional provisions involved in the New York Courts are

Article 1, Section 7 of the New York State Constitution and the

Just Compensation Clause of the Fifth Amendment of the

United States Constitution. No one statute was directly

involved in this case. Rather, several statutes and a covenant

affecting the property were identified below, but petitioner did

not challenge the constitutionality of any of them. Petitioner

for the first time submits copies of Article 25 of the New York

State Environmental Conservation Law and portions of the

Southampton Town Code. Although relevant, the

constitutionality of these statutes was not challenged below.

Several other applicable Federal, State, County and Town

statutes and regulations are just as relevant, but were not

challenged below. These statutes and regulations are

identified herein and in the record.

COUNTER-STATEMENT OF CASE

Certiorari should be denied pursuant to Rule 10 of this

Court. The petitioner's claims do not involve an “important

question of federal law”, nor do the decisions relied on below

conflict with any decisions of another state court of last resort,

any decisions of the United States Court of Appeals, or any

decisions of this Court. Furthermore, the alleged questions

presented in the petition were neither raised in the record or

3

decisions below. Question one is inappropriate as it omits key

facts regarding the origin of the alleged property interests

taken and there has been no finding by the State court that the

applicable restrictions have destroyed all value of the

property. Question two is inappropriate because petitioner

throughout the proceedings below did not challenge the

constitutionality of certain restrictions affecting her property

and was never denied the right to do so. Question three is a

purely factual inquiry never raised by petitioner below.

In essence, petitioner attempts to “bootstrap” her factual

assertions of value in a condemnation claim with the three

other unrelated cases! which involve challenges to specific

statutes as “regulatory takings.” This case, however,

originates from the Town of Southampton's de jure taking of

petitioner's property pursuant to formal condemnation

proceedings under New York State's Eminent Domain

Procedure Law. Petitioner's claim at trial was that pursuant to

New York State law, property taken in condemnation should

be valued as restricted by the applicable wetland regulations

with an increment for the reasonable probability of a

successful judicial challenge to the regulations’ application as

confiscatory. Petitioner, without even identifying or

challenging the applicable restrictions, asked the New York

Court to assume that any and all restrictions would be found

unconstitutional, to wit: the restrictions deny her of all

economically beneficial or productive use of the land.

1

Gazza v. NYSDEC, 2 No. 10, 1997 WL 68590 (N.Y. Feb. 18, 1997);

Anello v. ZBA of Village of Dobbs Ferry, 89 N.Y .2d 535, 184. N.Y.S.24

656 (1997); Kim v. City of New York, 2 No. 8, 1997 WL 58593 (N.Y.

Feb. 18, 1997).

4

Petitioner's value of $960,000 is based upon the potential to

develop not just one dwelling, but to create a nine lot

subdivision.

The Town, on the other hand, demonstrated, and three

New York courts have held that, as a matter of state property

law, Petitioner never had a right to unfettered development of

the property and that there was no reasonable probability of a

successful judicial challenge to the restrictions. The Petitioner

conceded and the Town proved that there was no probability

that one dwelling, let alone a nine lot subdivision, would be

approved for the property due to a certain declaration of

covenants and the concomitant land use regulations in place

when the subdivision creating the parcel was approved. The

New York courts did not establish a rule in this case that a

landowner loses a right to challenge a regulation upon the

transfer of property to another.

Contrary to Rule 10 of this Court, Petitioner now asks this

Court to review the findings of fact and determinations of state

property law made by the New York State courts.

STATEMENT OF FACTS

On March 8, 1990, Respondent, Town of Southampton

(“Town”), acquired from Petitioner, Dorothy A. Basile

(“Basile”), by condemnation, the fee title ownership of a

11.7532 acre wetland parcel located east of Tuthill Lane, north

of Moriches Bay, hamlet of Remsenburg, Town of

Southampton, County of Suffolk, State of New York.

The Town first appraised the property as of August 1,

1989, in the amount of $128,000.00 and an advance payment

5

in that amount was made to Basile.” (A347) At trial, the Town

submitted an updated appraisal valuing the property as of the

title vesting date in the amount of $117,500.00. (A416) Basile

submitted an appraisal in the amount of $960,000.00. (A288)

Dorothy A. Basile acquired title to the subject premises by

virtue of a deed dated March 10, 1989, approximately one year

Prior to the date of vesting, from Richard B. and Dorothy A.

Basile to Dorothy A. Basile alone, for no consideration. (A8a,

15, 358, 416-16) Prior to that transfer, the record shows that

title to the property was exchanged several times between

members of the same extended family. Each of the transfers

were for no consideration. (A8a, 15, 358, 416-16) The Basile

family first acquired title to the property by virtue of a deed

April 18, 1980 from Tuthill Associates, a partnership, to

Richard Basile. (A8a, 15, 358, 416-16) Consideration paid by

Richard Basile for this transfer was $88,500.00. (A8a, 15, 358,

416-16)

Petitioner's property was once part of a larger tract owned

by Tuthill Associates (“Tuthill”), who sought and were

granted approval for a subdivision map by the Planning Board

of the Town of Southampton on December 18, 1975. (A432)

In that instance, Tuthill sought permission to subdivide the

15.0715 acre tract into 4 parcels - three one-acre building lots

and a fourth, a 11.7352 acre tract for future consideration as a

building lot. The subject property is shown as Parcel No. 4 on

this map. (A424, 432) At the time of the Tuthill subdivision,

2

The Town has not sought the difference between the advance payment

of $128,000 and the award of $117,500 by the Supreme Court. Claimant

retains those funds.

6

the property was constrained by certain state, county and town

regulations restricting the development of wetlands. In light

of these regulations, the subdivision map was approved with a

condition that Tuthill agree to certain covenants. These

covenants were recorded in the Suffolk County Clerk's Office

at Liber 7974, page 97. (A390) Richard Basile, a real estate

investor, was familiar with these covenants and the

regulations prior to purchasing the property in 1980. (A7, 19)

The covenant precludes any development of the subject

property, including the erection of a single building or

structure, without the prior approval of the Planning Board of

the Town of Southampton. (A230, 363, 416-23, 424) Basile's

experts ignored the covenant (A165). The covenant states at

paragraph 4 et.seq. of the first page:

“WHEREAS, the Planning Board of the Town of

Southampton is not willing at this time to approve

Parcel No. 4 as described on Schedule A as a

building lot because it may consist of wetlands

and may not be suitable for erection of a dwelling

thereon, and

WHEREAS, the Declarant desires to have

Parcels No. 1, 2 and 3 as described on Schedule A

approved as building lots at this time, even if said

Parcel No. 4 is not suitable for a building lot, and

WHEREAS, the Planning Board of the Town of

Southampton is willing to approve said Parcels

No. 1, 2 and 3 as building lots, provided that

Parcel No. 4 is not approved as a building lot at

this time, such that it cannot be built upon without

a new application for approval as a building lot

7

being made to and thereafter approved by the

Planning Board of the Town of Southampton"

(see also A9)

Furthermore, the covenant states at paragraph number | of

the second page:

“1. That no building or structure shall be erected

on Parcel No. 4 as described on Schedule A,

unless and until said Parcel No. 4 is approved as a

building lot by the Planning Board of the Town of

Southampton.” (see also A9)

There is no evidence that Petitioner attempted to ascertain

the impact of the covenant or the concomitant regulations.

Rather, Petitioner's experts ignored the aforementioned map

(A158) and covenant (A165), and generally ignored the

Town's land use regulations in establishing the highest and

best use of the property. The property is zoned R-40, which

permits single family residences on lots consisting of 40,000

sq.ft. and 150 feet of lot width. (A361, 416-43) The property is

also located within two special zoning overlay districts, the

Tidal Wetland and Ocean Beach Overlay District and the

Tidal Floodplain Overlay District (see §§330-39 and 330-42,

Town Code). (A416-20) These restrictions limit the type and

location of development in and adjacent to tidal wetlands as

defined in §330-3 of the Southampton Zoning Code (A112,

400). Approximately ninety-seven (97%) percent of the

property is classified as tidal wetlands under this definition.

(A263, 400, 415, 421) All of these restrictions existed at the

time of subdivision (A263), but none of them were challenged

at trial.

Under the best of circumstances, the property would not

yield more than one dwelling under the Town Subdivision and

Zoning Regulations because of its configuration and because

legal access to the public road is limited to only twenty feet in

width. (A431) Basile and the Town agreed that it was not

reasonable to assume that even a single family dwelling could

be built on this property in accordance with Town regulations

(A125, 426). Petitioner's surveyor, however, proposes a 9-lot

cluster subdivision (A286) based upon a standard yield map.

(A284) In preparing these maps, the surveyor basically

assumed that the property contained no wetlands.

Significantly, the surveyor ignored the yield requirements of

§292-10B of the Subdivision Regulations (underwater lands

and wetlands areas must be excluded from area contributing to

lot yield) (A424, 437) and the required town wetland setbacks

and drainage requirements (A437). Also, both maps propose

access via a private road to the east, contrary to §280-a of New

York State Town Law (which requires suitable access to a

public road).

Oddly, petitioner ignored the applicable environmental

regulations, but then decided to use the cluster or planned

residential development provisions of the regulations (§292-

11 and Chapter 247, Southampton Town Code), whose very

purpose is to protect the same resources petitioner shuns.

(A425) These maps would also create significant drainage

issues with respect to the natural flow of water between

Moriches Bay and the large wetland area to the north. (A66,

437) Neither map would be approved by the Town. (A426) It

was noted that these restrictions existed at the time of the

original subdivision (A263), but none were challenged at trial.

Petitioner's experts did not address the impacts of their

proposed development on the environment (A92), and failed

9

to consider the environmental review requirements of the New

York State Environmental Quality Review Act (Article 8

E.C.L., 6 NYCRR Part 617, SEQRA) or its local equivalent,

Chapter 157 of the Town Code. (A438) These statutes require

state agencies to incorporate environmental review in its

decision-making and may require an environmental impact

statement to be prepared by a developer of wetlands.

Petitioner's experts also failed to address the jurisdictions

of the Suffolk County Department of Health Services

(“SCDHS”) related to water supply and sanitary sewage

disposal, the New York State Department of Environmental

Conservation (“NYSDEC”) under Articles 24 (Freshwater

Wetlands) and 25 (Tidal Wetlands) of the New York State

Environmental Conservation Law (see 6 NYCRR, Parts 664

& 661, respectively), and the jurisdiction of the United States

Army Corp. of Engineers under §404 of the Federal Clean

Water Act, [see 33 U.S.C. §§1251-1376 (1982)]. Although

the Tidal Wetland Act is mentioned by her appraiser,

petitioner introduced no evidence to challenge the

constitutionality of this statute as applied to her property, or

any of the other regulations.

Petitioner did not challenge the Declaration of Covenants

or any Federal, State, County or Town regulations at trial. No

claims were made by Petitioner against those governmental

entities. Rather, the appraiser assumed that Petitioner was

entitled to a subdivision permit, regardless of the covenant and

any regulations, because “we have been advised by counsel

that, as a matter of law a reasonable probability exists that the

legal restrictions could be successfully challenged with regard

to the Tidal Wetlands Act, the development would be legally

permissible.” (A314).

10

Petitioner introduced no evidence to show that the

covenant would be found to be illegal or unconstitutional, or

that there was a reasonable probability that even one dwelling,

as opposed to a nine lot subdivision, would be approved.

Petitioner introduced no evidence to show that she had more

than an unilateral expectation or an abstract need to unfettered

development of her property, or that a reasonable return on her

investment could not be achieved. There is no evidence of

market value of the land when it was acquired, other than her

husband's purchase price of $88,500.00 in 1980. Petitioner

did not and could not introduce any evidence of the market

value of the property before the restrictions were imposed

without taking into account the impact of the bargained for

agreement between the Town and the prior landowner. There

is no evidence that the covenant and all of the applicable

regulations have destroyed the value of the subject property.

OPINIONS BELOW

A. The Supreme Court's Decision

By Order and Judgment entered in the Clerk of Suffolk

County on May 3, 1994 (A2a), and decision dated April 4,

1994 (A6a), Justice Paul J. Baisley of the Supreme Court,

Suffolk County, awarded Petitioner, after a non-jury trial, the

sum of $117,500.00. Justice Baisley noted that the Court's

primary purpose in the proceeding was to determine the just

compensation due Petitioner under Article 1, §7 of the New

York State Constitution. The Court distinguished the factors

present in this case with the state law relied upon by Petitioner

in Chase Manhattan Bank v. State of New York, 103 A.D.2d

211, 479 N.Y.S.2d 983 (2nd Dept. 1984), Berwick v. State of

New York, 107 A.D.2d 79, 486 N.Y.S.2d 260 (2nd Dept

11

1985), and Berwick v. State of New York, 159 A.D.2d 544, 552

N.Y.S.2d 409 (2nd Dept. 1990). It found that because the

property had been subject to wetland restrictions for a

significant period of time, and there was no evidence

introduced regarding the value of the property at the time of

acquisition, Petitioner's “expert incorrectly assumed that a

constitutional challenge to the wetlands designation by the

claimant or subsequent transferee would likely be successful.”

(A6a) Contrary to petitioner's assertions, the Supreme Court

did not make a finding that the restrictions destroyed all value

of the property.

B. The Appellate Division's Decision

The Appellate Division, Second Department unanimously

affirmed the trial court's award based upon the value of the

property as restricted by wetlands regulations. Petitioner's

counsel argued the unconstitutionally of the State Tidal

Wetland Acct in his brief and at oral argument, but again failed

to identify or address the impact of the covenant and all other

concomitant Town regulations.

The Appellate Division in Basile v. Town of. Southampton,

222 A.D.2d 638, 636 N.Y.S.2d 97, stated that:

“The claimant's predecessors in interest and the

claimant knew, at the time of the

purchase/acquisition in 1980 and 1989, that the

property was encumbered by wetland restrictions

and might not be buildable. Thus, while the

claimant conceded and the Town proved that

claimant would be denied a permit to build on the

property due to wetland restrictions, the Town

demonstrated that in light of the declaration and

12

the wetland mapping, the claimant did not have

any reasonable investment-backed expectation

of building on her property, the potential of

building on the property was not part of her title to

begin with, and there was no categorical

regulatory taking (see, Lucas v. South Carolina

Coastal Council, 505 U.S. 1003; Gazza v. New

York State Dept. of Envir. Conservation, _AD2d

[2nd Dept. Dec. 4, 1995]).” (A444 & 445).

C. The Court of Appeals' Decision

The Court of Appeals affirmed the decision of the

Appellate Division, Second Department. In applying existing

state property law, the Court found that the facts required that

the valuation of petitioner's property should reflect applicable

environmental restrictions. Relying on Matter of Town of Islip

v. Mascioli, 49 N.Y.2d 354, 426 N.Y.S.2d 220, 402 N.E.2d

1123 (1980), which presented a similar issue related to value

of property taken in condemnation where a reasonable

probability that a court challenge to zoning regulations would

entitle landowner to an increment above the restricted value,

the court stated:

“Whatever taking claim the prior landowner may

have had against the environmental regulation of

the subject parcel, any property interest that

might serve as the foundation for such claim was

not owned by claimant here who took title after

the redefinition of the relevant property interests.

Moreover, as the concurrence notes, ‘the

wetlands restrictions at issue in this case did not

deprive claimant of any interest in the property

13

that had not already been encumbered' by virtue

of the covenants entered into by the former owner

in exchange for the right to subdivide and

develop what was then a larger parcel.”

The concurring opinion noted that:

“[e]ven if we were to accept claimant's argument

that the property must be valued as if it could be

developed for one or more single-family

residences because the alternative use for

recreational or aesthetic purpose is not an

economic use (cf., Lucas v South Carolina

Coastal Council, 505 US 1003, 1044 [Blackmun,

J., dissenting]), that is a consequence of the

covenants entered into by the former owner in

exchange for the right to subdivide and develop

what was then a larger parcel.”

The Court of Appeals did not decide that Basile did not

have a right to challenge the restrictions because she acquired

her property after the land use restrictions were enacted.

Rather, both the majority and the concurring opinion similarly

conclude that under these factual circumstances, Petitioner

cannot claim the value of the property without the

environmental restrictions, because an unrestricted right to

develop the parcel no longer remained in the “bundle” of

rights that she acquired through the former owner.

14

REASONS FOR DENYING THE WRIT

POINT I

THE DECISION OF THE NEW YORK

STATE COURT OF APPEALS IS BASED

UPON INDEPENDENT AND ADEQUATE

STATE GROUNDS AND THIS COURT

SHOULD THEREFORE DENY THEWRIT

FOR LACK OF A SUBSTANTIAL

FEDERAL QUESTION.

This Court unwaveringly adheres to the principle that it

will not review judgments of state courts that rest on adequate

and independent state grounds. Michigan v. Long, 463 U.S.

1032, 1040-4] (1983). In the context of direct review of a state

court judgment, the independent and adequate state ground

doctrine is jurisdictional. If the state law determination is

sufficient to sustain the judgment, “any opinion of this Court

on the federal question would be purely advisory.” Lambrix v.

Singletary, _U.S._, 1997 U.S. Lexis 2801, 10 (1997).

Thus, where a state court decision indicates with the

“requisite clarity” that petitioner's claims were rejected on

state law grounds, this Court is without authority to address

the federal claim supposedly raised below. Sochor v. Florida,

504 U.S. 527, 533 (1992); International Longshoremen's

Ass'n.; AFL-CIO v. Davis, 476 U.S. 380, 387 (1986). “Respect

for the independence of state courts, as well as avoidance of

rendering advisory opinions, have been the cornerstones of

15

this Court's refusal to decide” such cases. Michigan v. Long,

supra, 463 U.S. at 1040.?

Here, the New York Court of Appeals based its decision in

determining the value of property in condemnation on the long

standing “reasonable probability - incremental increase” rule

as set forth in Matter of Town of Islip v. Mascioli, supra, see

also Chase Manhattan Bank v. State of New York, supra,

Berwick v. State of New York, 107 A.D. 24.79, 479 N.Y.S. 2d

983. This rule has evolved in New York with federal

An owner whose property has been taken as a result of

condemnation is entitled to just compensation (U.S Const., 5th

Amend.; N.Y. Const., Art. I §7, [a]), which generally is

calculated by reference to the fair market value of the property

at its highest and best use at the time of appropriation, that is,

the price a willing buyer would have paid a willing seller for

the property (see Olson v. United States, 292 U.S. 246, 54

S.Ct. 704, 78 L.Ed. 1236 (1934); United States v. 564.54 Acres

of Land in Monroe and Pike Counties, Pennsylvannia, 44]

U.S. 506, 99 S.Ct. 1854, 60 L.Ed.2d 435 (1979).

That a property is undeveloped at the time of taking does

not alter the general rule. Unimproved land must be valued in

accordance with the highest and best use for which it is

adaptable and available (see Olson v. United States, supra,

Matter of Town of Islip v. Mascioli, supra.), provided the

condemnee establishes as a reasonable probability that such

3

This Court does, however, assess the sufficiency of the asserted state

ground. International Longshoremen's Ass'n., AFL-CIO v. Davis,

supra, 476 U.S. at 387; Michigan v. Long, supra, 463 US. at 1038.

16

use would have been made of the property in the near future

and that such use was more than a speculative or hypothetical

arrangement (see United States v. L.E. Cooke Co., Inc., 991

F.2d 336 (6th Cir. 1993), United States v. 15.65 Acres of Land

in Marin County, 689 F.2d 1329 (9th Cir. 1982).

The New York rule, under which petitioner sought to

establish the value of her property, states that where the

landowner can demonstrate that there is a reasonable

probability that a court challenge to zoning or environmental

restrictions could succeed, the landowner would be entitled to

an increment above the restricted value, which represents the

premium a knowledgeable buyer would be willing to pay for

potential change to more valuable use (see Matter of Town of

Islip v. Mascioli, supra; see also Chase Manhattan Bank v.

State of New York, supra., Berwick v. State of New York,

supra).

As the Appellate Division stated in Berwick v. State of

New York, 486 N.Y.S.2d at 263:

“(Tjhe law follows the realities of the market

place, which are that a knowledgeable buyer

would adjust his purchase price to offset the cost

in time and money of applying for a permit and

challenging its denial in court as confiscatory.

Certainly, a knowledgeable buyer would not pay

claimant the full unrestricted residential values of

their properties on the day of taking, when

wetland restrictions were still legally in effect.

He would pay only the value of the property as so

restricted, plus some increment representing its

enhanced value at such future time when he is

successful in nullifying the wetlands restrictions

17

incourt. ... [D]ifficulties in securing approval for

tidal wetlands regulations would reduce the

desirability of these properties in the market

place. That claimants might eventually have

secured a judicial declaration of confiscation,

compelling the State to compensate them for their

loss if a permit was denied, simply cannot be

translated into a market value for immediate

residential use on the date of taking.”

Furthermore, overcompensation is as unjust to the public

as undercompensation is to the property owner, and the

landowner bears the burden of proving the value of the land,

U.S. v. L.E. Cooke Co., Inc., supra, United States v. 69.1 Acres

of Land, 942 F.2d 290, 292 (4th Cir. 1991).

Thus, petitioner had the burden to show that a reasonable

probability existed that the restrictions that would prohibit the

development of her property inte a nine lot residential

subdivision would be found confiscatory. Petitioner failed to

meet her burden in a number of ways.

Petitioner did not challenge below the constitutionality of

all applicable development restrictions and the declaration of

covenants that encumbered the title to her property. Petitioner

merely asked the court to assume that there would be a

reasonable probability that the State Tidal Wetlands Act

would be found unconstitutional and that she would be able to

value her property as a nine lot subdivision. Generally, the

Constitution leaves the law of real property to the states,

Stevens v. City of Cannon Beach, 510 U.S, 1207, 114S.Ct.

i8

1332 (1994). Petitioner's right to subdivide her real property is

defined by State and Town regulations,’ not by federal law

nor the Constitution.

Petitioner failed to identify all applicable restrictions and

introduced no evidence to show that she had a “right” to build a

single dwelling or structure on her property under New York

law, let alone subdivide into nine building lots. As the Court

found, Petitioner was not deprived of any interest in the

property that had not already been encumbered by virtue of the

covenants entered into by her predecessor in title in exchange

for the right to subdivide and develop what was then a larger

parcel. Petitioner's attempts to qualify or interpret the

meaning of the covenant at this juncture, without any evidence

in the record to substantiate same, is inappropriate.

Thus, the Court of Appeals’ determination that defined

petitioner's bundle of rights to preclude the potential to

develop the property into a nine lot subdivision constitutes

adequate and independent state grounds for the judgment

below and divests the Court of jurisdiction to hear this case.

The takings issue raised indirectly in this case is a federal

question, but the federal aspects of that question are not

contested and the issues have already been decided under the

precedents of this Court. In particular, the New York courts

have correctly interpreted and applied this Court's decision in

Lucas, supra. While Petitioner, under Lucas, has a right to an

economic return on her property, the amount of the return is

4

See New York State Town Law §§276, 277, 278 and Southampton

Town Code, Chapters 247 and 292.

19

limited by the character of the land itself, and the extent of

petitioner's rights. In Lucas, the Court indicated:

“Where the State seeks to sustain regulation that

deprives land of all economically beneficial use,

we think it may resist compensation only if the

logically antecedent inquiry into the nature of the

owner's estate shows that the proscribed use

interests were not part of his title to begin with.

This accords, we think, with our ‘takings’

jurisprudence, which has traditionally been

guided by the understandings of our citizens

regarding the content of, and the State's power

over, the ‘bundle of rights' that they acquire when

they obtain title to property.” Lucas v. South

Carolina Coastal Council, 112 S.Ct. 2886, 2899.

Petitioner's arguments failed in the New York courts

vecause the “logically antecedent inquiry” into the nature of

petitioner's estate revealed a covenant and concomitant land

use regulations which precluded the development of her

parcel into nine lots.

Thus, the economic benefit of the parcel that petitioner

claims was taken from her did not exist, and the valuation

granting petitioner $128,000° or a $39,500 return on her

family's investment over a ten year period, is reasonable.

Moreover, petitioner could not show the extent to which

the restrictions interfered with distinct investment-backed

5

Town paid an advance payment of $128,000 and Petitioner has retained

those funds.

20

expectations. As Justice Kennedy in his concurring opinion in

Lucas clarifies:

“The finding of no value must be considered

under the Taking Clause by reference to the

owner's reasonable, investment-backed

expectations * * * The Takings Clause, while

conferring substantial protection on property

owners, does not eliminate the police power of

the State to enact limitations on the use of their

property. * * * Where a taking is alleged from

regulations which deprive the property of all

value, the test must be whether the deprivation is

contrary to reasonable, investment-backed

expectations.” Lucas, 112 S.Ct. 2886, 2903.

In Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005, 104

S.Ct. 2862, 81 L.Ed.2d 815 (1984), the Court noted that

reasonable, investment-backed expectation must be more than

a unilateral expectation or an abstract need. In Penn Central

Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct.

2646, 57 L.Ed.2d 631 (1978), the Court rejected as “quite

simply untenable” the contention that property owners “may

establish a ‘taking’ simply by showing that they have been

denied the ability to exploit a property interest that they

heretobefore had believed was available for development. . .”

438 U.S. at 130 [98 S.Ct. at 2662].

Since Lucas requires that the historically rooted

expectancy or the “bundle of rights” one acquires as a property

owner must be measured as of the time it is acquired, there can

be no taking if the court concludes that a reasonable purchaser

would not have expected to have unfettered use of the subject

21

property. Here, the New York courts held that in light of the

covenant that advised that the property contained wetlands

and was not suitable for development, and the fact that the

property was regulated for several years prior to her

acquisition, petitioner could not reasonably expect to be able

to subdivide her property and claim unfettered use. Therefore,

the New York courts correctly interpreted and applied the

takings decisions of this Court. As Lucas settled this issue,

this case presents no substantial federal questions, and there

are no special and important reasons for granting certiorari.

POINT I

THE DECISION OF THE NEW YORK STATE

COURT OF APPEALS POSES NO CONFLICT

REGARDING A SUBSTANTIAL QUESTION

OF FEDERAL LAW, NOR DOES IT

CONFLICT WITH THE DECISIONS OF

ANOTHER STATE COURT OF LAST

RESORT, A UNITED STATES COURT OF

APPEALS, OR THIS COURT

Rule 10 of this Court's rules states that review of a writ of

certiorari is a matter of judicial discretion that will be

exercised “only for compelling reasons.” Although that rule

also advises that a writ may be granted if, inter alia, a state

court of last resort has decided an important federal question in

a way that conflicts with the decision of another state court of

last resort, of a United States Court of Appeals, or of this

Court, there is no such conflict here.

As an initial matter, the Court of Appeals’ opinion rests

solely on an interpretation of state property law, and it

therefore does not invoke, much less decide, an important

22

federal question. In fact, where, as here, the issue involves

state-created property rights, “it is appropriate to recognize

that in certain instances, different states may define these

rights by providing additional protection from government

interference.” Stupak-Thrall v. United States, 89 F.3d 1269,

1270 (6th Cir. 1996) (Nelson Moore, J., concurring), cert.

denied, _U.S._,136L.Ed.2d 71i (1997). Regardless of the Court

of Appeals ruling in this case, other states are free to provide

that one of the sticks in the bundle of rights that comprise fee

simple title to land in that state is the right to subdivide and

develop property.

The Court of Appeals’ decision poses no conflict that

merits this Court's review. In fact, the Court of Appeals’

ruling, premised upon the factual assertions regarding the

value of property encumbered by a covenant with concomitant

land use regulations which preclude all reasonable probability

of the development of the property, is in perfect harmony with

decisions from other state courts of last resort and the federal

appellate courts. See, e.g., Grant v. South Carolina Coastal

Council, 319 S.C. 348, 461 S.E.2d 388 (S.C. 1995) (andowner

never had the right to fill critical area tidelands on his property

because statute in existence when he purchased property in

1987 forbade it without a permit); Hynziker v. State of Iowa,

519 N.W.2d 367 (Iowa 1994) (denial of building permit did not

to their property subject to pre-existing state regulations

governing the preservation of ancient burial grounds); Stevens

v. City of Cannon Beach, 317 Ore. 131, 854 P.2d 449 (1993),

cert. denied 510 U.S. 1207 (1994) (when plaintiffs took title to

their land, they were on notice that, under the state's custom,

they did not possess the right to exclusively use their dry sands

area); Just v. City of Marinette County, 56 Wisc.2d 7, 201

23

N.W.2d 761 (1972) (statute protecting wetlands prevents the

public nuisance that filling or alteration of them would create,

and requires no compensation to the owner); Sibson v. State of

New Hampshire, 336 A.2d 239 (1976) (denial of a wetland

permit is a valid exercise of police power and did not require

compensation); Claridge v. New Hampshire Wetlands Board,

125 N.H. 745, 485 A.2d 287 (1984) (purchaser of land with

notice of restrictions to development of tidal wetlands can

justify few, if any, legitimate investment-backed expectations

of development right which rise to the level of constitutionally

protected property rights); Ciampitti v._United States, 22

Cl.Ct. 310 (1991) (denial of permit to fill wetlands did not

interfere with reasonable, investment-backed expectations

and did not require compensation); McNulty v. Town of

Indialantic, 727 F.Supp. 604 (U.S. Dist. Ct., M.D., Florida,

Orlando Div. 1989) (denial of development permit on

oceanfront property did not constitute taking requiring

compensation); Leonard v. Town of Brimfield, 423 Mass. 152,

666 N.E.2d 1300, cert. denied, _U.S.__ 117 S. Ct. 582 (1996)

(landowner did not have reasonable, investment-backed

expectations to subdivide floodplain property and did not

require compensation); Allegria v. Keeney, 1997 WL 33587

(R.I. Jan. 29, 1997) (purchaser's prior knowledge of wetland

restrictions was relevant in determining that purchaser had no

reasonable investment-backed expectations of developing

property and did not require compensation).

Petitioners nonetheless assert that the Court of Appeals’

opinion conflicts with the “regulatory taking” opinions of four

state courts (Pet., at 11-17). Notwithstanding that none of

these decisions involve a question of value in condemnation,

further review of those cases demonstrates that no conflict

exists.

24

The first and only decision of a state court of last resort

cited by petitioners, Lopes v. City of Peabody, 417 Mass. 299,

629 N.E.2d 1312 (Mass. 1994), stands for the wholly

unremarkable proposition that, under Massachusetts law, a

property owner is entitled to challenge a pre-existing land use

regulation (Pet., at 13). The only issue before that Court was

the plaintiff's facial challenge to the regulation, 417 Mass., at

302; 629 N.E.2d, at 1314. That principle has no applicability in

this matter, which raises no facial challenge whatsoever.° In a

footnote (#13 at 417 Mass. 307) in its decision the

Massachusetts court noted:

“Sociedad an tae lancech havea ete ss

couiige deipulueion' he apeated elle peuisaety dike

not substantially advance legitimate State

interests . . . He will also have the burden of

proving that the zoning regulation has deprived

the land of all economically beneficial use. He

will have to prove that the use of the property

(presumably a single family residence use) is one

that is economically feasible and otherwise

permitted under various other regulations,

including the State sanitary code. On the issue

whether that use would constitute a nuisance or

some other unlawful use of the land, principles

Indeed, in language petitioners’ unaccountably ignore, the Lopes Court

explicitly acknowledged that “the rights of a subsequent purchaser to

takings damages might well stand in a posture significantly different

from that of one seeking to have a zoning provision invalidated.” 417

Mass., at 303, n.8; 629 N.E.2d, at 1317.

25

guiding the placing of the burden of proof may

shift that burden to the city or perhaps place on it

the burden of going forward to present evidence

tending to show that Lope's proposed use would

improperly exceed other limits on his right to use

his land. At least, in this case, the government

must identify background principles of nuisance

or property law that prohibit the landowner's

proposed use of the property.” (citing Lucas)

In fact, Massachusetts now recognizes that where a

purchaser acquired property in a designated flood plain that

was subject to established restrictions on building, she has a

right to challenge the continued application of a restriction,

but she “may not complain about the loss of a right she never

acquired.” Leonard v. Town of Brimfield, 423 Mass. 152, 666

N.E.2d 1300, 1303 (Mass. 1996), cert. denied, U.S._ 117 S. Ct.

582 (1996). The Lopes decision therefore cannot pose any

conflict worthy of this Court's review. :

Petitioner also erroneously contends that a conflict arises

with K & K Construction, Inc. v. Department of Natural

Resources, 217 Mich.App. 56, 551 N.W.2d 413 (Mich. App.

1996) (Pet., at 14-15), which is not even a decision of state court

of last resort. This is an intermediate state appeals court

decision. That Court, however, agrees that a regulation must

inhere to the owner's title and must be grounded in background

principles of nuisance and property law. 217 Mich. App., at

62; 551 N.W.2d, at 417. In that particular case, the Court held

that the constitutional provision and legislative preamble

relied on by the State to establish those background principles

were insufficient to carry the State's burden in this regard. 217

Mich.App., at 62-63; 551 N.W.2d, at 417-18. The Court also

26

upheld the lower court's discretion as the trier of fact to

determine the fair market value of the land with the use

restrictions placed on it.

Petitioner also relies on Moroney v. Mayor, 268 N.J.

Super. 458, 633 A.2d 1045 (N.Y. Super. Ct. App. Div., NJ.

1993) (Pet., at 15-16), another intermediate appellate decision.

Moroney is not helpful here as it turns on the specific language

of the zoning provisions in issue, which expressly states that if

a property owner had the right to apply for a hardship variance

when the zoning ordinance was enacted, the right passes to a

successor in title. 268 N.J. Super., at 464; 633 A.2d, at 1048.

Thus, the Moroney Court also examined the property owner's

bundle of rights in light of existing state law.

The last case petitioner relies on, Vatalaro v. Department

of Environmental Regulation, 601 So. 2d 1223, (Fla. Dist. Ct.

App. 5th Dist. 1992), review denied, 613 So. 2d 3 (Fla. 1992), is

also not a decision of state court of last resort. The Vatalaro

Court never held as a general rule that the denial of a building

permit to one who purchases after restrictive regulations have

been adopted is a taking requiring compensation. Rather, the

Vatalaro court agreed that the wetlands regulations at issue

would bar a takings claim where there was a denial of a

rezoning or variance application, because the property was

purchased in anticipation of a discretionary rezoning

application which, if denied, did not affect the landowner's

bundle of rights. 601 So. 2d at 1229. However, the Court then

distinguished cases involving permit regulations, where the

land is purchased “with future development legitimately

anticipated and with no existing bar thereto.” Id. Thus, both

the Vatalaro court and the New York Court of Appeals

27

approach the issue similarly by examining the bundle of rights

a landowner acquired in light of relevant state law.

The Court of Appeals decision does not conflict with a

footnote in Nollan v. California Coastal Commission, 483

U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) as petitioner

asserts (Pet., at 21). In Nollan, this Court held that the state

agency could not implement a policy that exacts a public

beachfront easement in exchange for a building permit

without a showing of a sufficient nexus to a legitimate

governmental purpose, even if the landowners knew of that

policy when they acquired the property. Here, there is no

development exaction at issue.

Lastly, the New York Supreme Court's recent decision in

the matter of Brotherton v. NYSDEC, Case No. 12809-90

Sup.Ct., Suffolk Cty., IAS 8, 2/24/97 is of no consequence.

This case is decided on a similar inquiry into the bundle of

rights a landowner acquired in light of relevant state law. In

reviewing a denial of a tidal wetland permit by the State, the

Court found no regulatory taking had occurred because of the

unity in use and ownership with respect to the two parcels in

question and found significant value left in the property.

Thus, petitioner has failed to raise a conflict involving a

substantial federa! question that merits this Court's review,

and her writ should be denied.

28

CONCLUSION

For all the foregoing reasons, the petition for a writ of

certiorari should be denied.

Dated: Southampton, N.Y.

June 26, 1997 |

Respectfully submitted, :

WAYNE D. BRUYN, ESQ. ;

Attorney for Respondent 3

Town of Southampton 5

116 Hampton Road ;

Southampton, NY 11968 |

(516) 287-3065 :