# Opposition Brief — Basile v. Town of Southampton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 907

## Text

J
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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 :

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0781%3A3. Public record. Not legal advice.