Opposition Brief — Gazza v. New York Department of Environmental Conservation

No. 96-1881 wv)

IN THE a

Supreme Court of the United tates Sou is

October Term, 1996 HUN 27 1997

CLERK

JOSEPH F. GAZZA,

Petitioner,

v.

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

RESPONDENT'S BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

BARBARA G. BILLET* DENNIS C. VACCO

Solicitor General Attorney General of the

State of New York

JOHN W. MCCONNELL Attorney for Respondent

Deputy Solicitor General 120 Broadway

New York, New York 10271

GREGORY J. NOLAN (212) 416-8020

Assistant Attorney General

*Counsel of Record

THE REPORTER COMPANY AND THE WALTON REPORTER, INC.

181 Delaware Street, Walton, NY 13856—800-252-7181

(3331 - 1997)

Printed on Recycled Paper o :

i

QUESTIONS PRESENTED

1. Whether a determination by the New York State Court of

Appeals that the State’s wetlands regulation left petitioner with

ample economically beneficial use of his property and did not

deprive him of a reasonable investment-backed expectation of

value, based upon judicial findings of fact after trial, raises a

constitutional issue warranting review by this Court.

2. Whether this case presents a satisfactory context in which

to determine whether a pre-existing rule of state law imposing

a use limitation upon title at the time property is acquired may

constitute a compensable taking under the Fifth and Fourteenth

Amendments.

TABLE OF CONTENTS

Page

Cousetians Pamete’d oo sob iec is eendexesonseceeecien i

TERS OF RII 6 o.0 5.5 5 05k cecensdeswebeduene ill

SRN CEE CG 66 ss ne ee l

ARGUMENT

POINT I

Because petitioner failed to controvert the state courts

factual finding that the denial of a wetland permit did

not diminish the value of his property sufficiently to

constitute a taking, this Court should deny the petition

Gor wilt GE COMOORR ... os oi kins scnenabacueneaeeeks 7

POINT II

Petitioner's claim that the holding at issue denies com-

pensation for any regulatory taking to all subsequent

property transferees is neither accurate nor sufficient to

warrant Chis Comite 00000... 5s oes nun ceneeenseaa 9

er er 15

ili

TABLE OF AUTHORITIES

Cases

Alegria v. Keened, 687 A.2d 1249 (Ri, 1997) ....6...-.. 13

Concrete Pipe & Products of California v. Construction

Laborers Pension Trust, 508 U.S. 602 ce eee 5

Gazza, Matter of v. New York State Department of Environ-

mental Conservation, 159 Misc.2d 59] (Sup. Ct. Suffolk

Co. 1993), aff'd, 217 A.D.2d 202 (2d Dept. 1995), aff'd,

——NY2d____ (1997), 1997 WL 68590 (N.Y.)........ 4

Goldblatt v. Hempstead, 369 U.S. 590 Sa 7

Grant v. South Carolina Coastal Council, 319 S.C. 348, 461

le) a 14

Hoeck v. City of Portland, 57 F.3d 781 (9th Cir. ee

Hynziker v. State of Iowa, 519 N.W.2d 367 (Iowa 1994) ... 14

K & K Construction v. Department of Natural Resources, 217

Misc. App. 56, 551 N.W.2d 413 (Ct. App. Mich.

ee 12, 13

Leonard v. Town of Brimfield, 423 Mass. 152, 66 N.E.2d

EIT, Se 13

Lopes v. Peabody, 417 Mass. 299, 629 N.E.2d 1312 (Mass.

ERE 1 Ue ee rr 12, 13

iV

Lucas v. South Carolina Coastal Council, 505 U.S. 1003

a PE ee ry rt Prepay passim

Moroney v. Mayor and Council, 268 N.J. Super. 458, 633

A.2d 1045 (N.J. Super. A.D. 1993) ............. 12, 13

Nollan v. California Coastal Commission, 483 U.S. 825

GO Fe Uta eta cada od cee ek oe eee ees 1]

Penn Central Transportation Co. v. New York City, 438 U.S.

seis ks EET OEE ene 5,7

Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996).. 11

Thomas Thompson v. Dept. of Envtl. Conservation, 130

Misc.2d 123 (Sup. Ct. Suffolk Co. 1985), aff'd, 132

Ad2D.26: OGD C26 DOE. TSB FY ia 6 RRA ik 2

Vatalaro v. Department of Environmental Regulation, 601

So.2d 1223 (Fla. App. Sth Dist.), review denied, 613

oe ek: rr err ey 12, 13

United States Constitution

eo oe et Ca es Jes Oe pegs 4

New York Statutes

Environmental Conservation Law

pS NEE ET POSE OE LPT PEC rE Se Pee eee

i SAP rere ere ee ee

$.° Per rPrrrrreretreererr cere free.

New York Regulations

6 NYCRR

SETTER ERO PT

SN 5 u.cns sederd vate ent tata

SIN ics. 0's dence ae er enar eee

2S: Geen err re tec

No. 96-1881

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

JOSEPH F. GAZZA,

Petitioner,

V.

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

RESPONDENT'S BRIEF IN OPPOSITION TO

THE PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

The petition in this matter seeks review by this Court of an

opinion and order of the New York State Court of Appeals,

2

dated February 18, 1997 (PAla-24a),' which upheld against

petitioner's constitutional challenge, as had the New York

Supreme Court (PA45a-5 1a) and the Appellate Division, Second

Department (PA25a-44a) before it, a decision of the Commis-

sioner of the New York State Department of Environmental

Conservation (PA52a-75a), denying petitioner's application for

a tidal wetland permit and variances from setback requirements

to build a house and sewage septic system on a one-acre parcel

in the Village of Quogue, New York. Petitioner, a professional

real estate developer and lawyer specializing in real estate and

land use law and the owner of numerous properties in the Town

of Southampton and the Village of Quogue, purchased the

subject parcel in 1989 for $100,000 (PA26a). Approximately

65% of the parcel is tidal wetland; the remainder is a regulated

adjacent area. A permit has been required for construction on

such lands pursuant to the New York State Tidal Wetlands Act,

Environmental Conservation Law ("ECL") Article 25, since

September 1973. At the time of the lot's purchase, petitioner was

intimately acquainted with the wetlands and zoning regulations

governing its use; he was familiar with a recent court decision

which had upheld the tidal wetlands boundary (A58-62, A65-66,

A75) (see, Thomas Thompson v. Dep't of Envtl. Conservation,

130 Misc.2d 123 (Sup. Ct. Suffolk Co. 1985), aff'd, 132 A.D.2d

665 (2d Dept. 1987); he had been warned by staff of the

Department of Environmental Conservation ("DEC") that the

best use of the property "would be perhaps a self-contained

trailer" (SA442), and that the purchase should be made contin-

gent upon obtaining DEC and other regulatory approvals for the

‘Numbers in parentheses with the prefix "PA" refer to pages of the

appendix to the Petition in this matter. Numbers in parentheses preceded by

the prefix "A" or "SA" refer to the Appeliant’s Appendix, or Respondent's

Supplemental Appendix, before the New York State Court of Appeals.

use he sought (SA438-439); he had hired engineers and survey-

ors who were aware of the wetlands regulations, and who later

testified that those regulations, and the local zoning ordinance,

apparently precluded a "building envelope" on the property

(A392, Ex. 13; A71, A102, A277).? Indeed, in June 1989—six

months before purchasing the property—petitioner applied to

the DEC for a permit seeking a substantial variance from the

structure and septic system setbacks contained in the DEC's tidal

wetland regulations (SA479). Nonetheless, on November 29,

1989, without a final decision from the DEC regarding his

it application and variance request, petitioner closed on the

property (A25, A112; SA476-477).

Subsequent to the closing and following a full evidentiary

hearing to consider petitioner's permit application, a DEC

administrative law judge ("ALJ") issued a hearing report

recommending that the permit be denied (PA55a-78a). The ALJ

concluded that petitioner had failed to meet his burden of

demonstrating that his proposed project was compatible with the

Tidal Wetlands Act; or that the project would preserve and

protect tidal wetlands or prevent their despoliation and destruc-

tion; or that variances should be granted for any other reason

(PA77a). The Commissioner of the Department of Environmen-

tal Conservation subsequently adopted the ALJ's findings and

conclusions, and issued a decision denying the application

(PA52a-54a). In that decision, the Commissioner ruled that a

permit for a dock, a catwalk, and a parking area might be issued

upon petitioner's application (PA54a).

*Regulations require a house to be set back 75 feet from the tidal wetlands

line and a septic system to be set back 100 feet. See ECL §§ 25-0302, 25-

0401, and 6 New York Codes, Rules and Regulations ("NYCRR") Part 661,

particularly 6 NYCRR §661.6(a)(1) and (2).

4

Upon petitioner's commencement of a proceeding to review

this decision pursuant to Environmental Conservation Law

§ 25-0404, the New York State Supreme Court, after a trial,

confirmed the Commissioner's decision and rejected petitioner's

claim that the tidal wetlands regulations deprived him of

property without compensation in violation of the Fifth and

Fourteenth Amendments. Matter of Gazza v. New York State

Department of Environmental Conservation, 159 Misc.2d 591

(Sup. Ct. Suffolk Co. 1993) (PA45a-51a). Among its findings of

fact, Supreme Court noted that respondent's real estate expert

appraised the property, as protected under wetlands regulations,

at approximately $80,000; and that a local resident had made an

offer for the property, not yet withdrawn, of $50,000 (PA49a).

At trial, petitioner's appraiser testified that the value of the

property without the wetlands restriction would be $396,000

(PA4a). The Appellate Division unanimously affirmed the

Supreme Court's findings and order. Matter of Gazza v.

New York State Department of Environmental Conservation,

217 A.D.2d 202 (2d Dept. 1995).

Upon petitioner's further appeal, the New York State Court of

Appeals affirmed the order of the Appellate Division on two

distinct grounds. Matter of Gazza v. New York State Department

of Environmental Conservation, __ N.Y.2d _____ (1997); 1997

WL 68590 (N.Y.) (PAla-24a). As a general matter, the court

held that the regulations promulgated under the Tidal Wetlands

Act constituted a pre-existing rule of State law which imposed

a limitation upon title at the time petitioner acquired the

property (PA1 1a). While the court agreed that those regulations

gave petitioner an expectation that the DEC would consider any

variance request in accordance with the requirements of the Act,

including the promotion of public safety and welfare and the

achievement of substantial justice (6 New York Code of Rules

and Regulations § 661.11), it rejected petitioner's contention

5

that they gave him an absolute right to build a one-family

dwelling on the property (PA13a). Since the DEC denial of

petitioner's variance application was supported by substantial

evidence and was otherwise correct, the court rejected his

takings claim (PA13a-14a). Significantly, the court noted that

petitioner had not based that claim on an assignment of rights of

prior holders of title to the parcel; the court consequently

declined to address "[t]he entirely separate inquiry of whether

an existing taking claim may be donated, sold, inherited, or

otherwise assigned" (PA1 1a, n 3). The court further noted that

the limits in petitioner's title did not bar a claim that the particu-

lar wetlands regulations were beyond the State's power or were

otherwise unconstitutional or illegitimate, although petitioner

raised no such claim in this case (PA1 la-12a).

As a separate ground for its affirmance, the court found that

petitioner had failed to meet his burden of demonstrating a

fundamental factual element of a takings claim: the sufficient

deprivation of economic value in the land. Noting that the "mere

diminution in the value of the property, however serious, is

insufficient to demonstrate a taking" (PA17a, quoting Concrete

Pipe & Products of California v. Construction Laborers

Pension Trust, 508 U.S. 602, 645 [1993]), and that restrictions

through regulation amounted to a per se taking only where

government has required a property owner "to sacrifice all

economically beneficial uses in the name of the common good,

that is, to leave his property idle" (PA15a, quoting Lucas v.

South Carolina Coastal Council, 505 U.S. 1003, 1019 [1992)),

the court concluded that, in analysis of regulatory takings, "[t]he

primary inquiry must always focus upon ‘the question of the

severity of the impact of the law on appellants’ parcel’ " (PA18a,

quoting Penn Central Transportation Co. v. New York City, 438

U.S. 104, 136 [1978]). Because Supreme Court had justifiably

concluded that petitioner could use the parcel for valuable

6

recreational purposes, and that "petitioner's reasonable expecta-

tions were reflected by his consideration of the inherent limita-

tions on the property when he made the purchase offer for

thousands less than its worth without the restrictions” (PA19a),

the Court of Appeals determined that the wetlands limitation did

not deprive petitioner of a reasonable investment-backed

expectation of value, and consequently did not rise to the level

of a compensable taking (PA20a, citing Lucas, 595 U.S. at

1030). Moreover, the court expressly rejected, on state law

evidentiary grounds, petitioner's claim that the finding of value

in his property ignored his obligation to obtain zoning variances

from the Village of Quogue prior to employing the property in

such recreational uses (PA19a-20a):

In such circumstances, we have stated that petitioner

has the burden of showing that it is unreasonable to

expect relief from a zoning restriction (de St. Aubin [v

Flacke], 68 NY2d [66], 76, 78-79 [1986]). Although

petitioner did not have to complete the application

process to meet his burden on the issue, his conclusory

assertion that the zoning variances would not be granted

is insufficient when the record contains “ample and

convincing” evidence to the contrary (Gazza [v New

York State Department of Environmental Conservation],

217 AD2d 202, 212). The Village Law provides that a

variance may be granted if an applicant cannot realize a

reasonable return without it (NY Village L § 7-712-

b[2}[b)).

Petitioner subsequently filed a petition for a writ of certiorari

with this Court.

7

ARGUMENT

POINT I

BECAUSE PETITIONER FAILED TO CONTROVERT

THE STATE COURTS’ FACTUAL FINDING THAT

THE DENIAL OF A WETLAND PERMIT DID NOT

DIMINISH THE VALUE OF HIS PROPERTY SUFFI-

CIENTLY TO CONSTITUTE A TAKING, THIS

COURT SHOULD DENY THE PETITION FOR WRIT

OF CERTIORARI

Because petitioner in this matter has failed to challenge or

controvert the holding of the Court of Appeals that the denial of

a variance did not diminish the value of his property to a degree

sufficient to constitute a taking under state or federal law, this

Court should deny the petition for certiorari. That conclusion

was based upon various findings of fact of the State Supreme

Court, including the purchase price of the property ($100,000),

an expert's testimony that the value was $80,000 under the

recreational uses permitted by the Department, and petitioner's

failure to present evidence that those recreational uses were

unavailable to him.

As this Court has often observed, the mere fact that a regula-

tion deprives an owner of the most beneficial use of his property

does not render it unconstitutional. See, e.g., Goldblatt v.

Hempstead, 369 U.S. 590, 592 (1962). Determination of

whether a taking has occurred requires a more complex analysis,

including examination of the economic impact of the regulation,

the extent of its interference in reasonable investment-backed

expectations, and the character of the government's action. Penn

Central Transportation Co. v. New York City, 438 U.S. at 124;

Lucas, 505 U.S. at 1019-20. In the matter at bar, the Court of

8

Appeals conducted precisely such an analysis (PA15a-20a), and

petitioner has failed to controvert its findings in any respect.

Most critically, he has failed to demonstrate that he "has been

called upon to sacrifice all economically beneficial uses in the

name of the common good, that is, to leave his property eco-

nomically idle". Lucas, 505 US at 1019. Moreover, in light of

petitioner's extensive knowledge of the wetlands requirements

and his prior consultation with the DEC, he has not shown that

the regulation harmed any reasonable investment-backed

expectation of value he might have entertained at the time he

purchased the property.

Rather than curing the evidentiary deficiencies reflected in the

decision of the Court of Appeals on the issue of diminution of

value, petitioner has chosen merely to rail against it (Pet., pp.

18-21), in a brief discussion riddled with factual and interpretive

errors. His claim that the court's factual finding "was an attempt

to avoid this Court's holding in Lucas v. South Carolina Coastal

Council (Pet., p. 18) is entirely unfounded; Lucas is discussed

and cited extensively by the Court of Appeals in this portion of

its decision (see, PA15a-17a, PA20a). His claim that the denial

of a variance left his property "substantially in its natural state"

(Pet., p 29) ignores the factual findings of valuable private uses

which the court considered appropriate to that state, as well as

the specific alterations of that natural condition (parking pad,

shed, boat dock, etc.) permitted under the court's holding. His

claim that the court created "insurmountable obstacles" to the

vindication of his property rights by its recitation of the high

evidentiary requirements of state law (Pet., p 17) ignores the

court's specific holding that he had failed to make his case even

under a lesser standard (PA77, n 2). His assertion that the

“essential and only economically beneficial or productive use"

of his property "is single family residential" (Pet., p 21) is

unfounded and erroneous. Indeed, given the size and character

9

of the lot—tidal wetland with a small amount of upland subject

to occasional flooding—its most obvious and natural use is to

provide access to the water for various purposes, as permitted by

the DEC.

In sum, the Court of Appeals’ affirmance of the factual

finding that the property retained substantial value even as

limited by regulation was made under well-settled takings

principles and contains no novel analysis or interpretation of

either state or federal law. Nor is there reason for this Court to

review the determination that, under the facts of this case,

petitioner was not deprived of a reasonable investment-backed

expectation of value or use of his property. On the contrary, the

decision on that issue was both correct and unexceptional.

POINT II

PETITIONER'S CLAIM THAT THE HOLDING AT

ISSUE DENIES COMPENSATION FOR ANY

REGULATORY TAKING TO ALL SUBSEQUENT

PROPERTY TRANSFEREES IS NEITHER ACCU-

RATE NOR SUFFICIENT TO WARRANT THIS

COURT'S REVIEW

As an additional ground for seeking certiorari in this matter,

petitioner has argued that the New York State Court of Appeals

“held that the right of a property owner to make economically

viable use of the privately-owned land could be extinguished by

a mere statutory enactment followed by a transfer to title of real

property” (Pet., p. 22). This is an inaccurate assessment of the

court's holding. As we have noted above, the court expressly

declined to address the issue of whether a property owner's

taking claim could be devised or transferred to another person

or property holder (PAI la, n 3). The court found no need to

10

address that matter in this case because petitioner at no time

asserted that he was the recipient of such a transferred claim;

indeed, the testimony of petitioner's own appraiser made clear

that the consideration which petitioner paid for the property

($100,000) did not reflect the alleged value of a parcel unen-

cumbered by regulations ($396,000). Consequently, inasmuch

at the Court of Appeals has not ruled dispositively upon the

principal issue which petitioner cites as in conflict with other

jurisdictions and warranting this Court's review, the petition for

a writ of certiorari should be denied.

In any event, petitioner's argument that pre-existing regulatory

limitations may not diminish a property owner's takings claim

(Pet., pp. 15-18) is unfounded. As this Court observed in Lucas

(505 U.S. at 1027), this Court's takings jurisprudence “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."

Even in the extreme case where a regulation deprives land of all

economically beneficial use, no compensable taking occurs "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" (505 U.S. at 1027). In this matter, the Court

of Appeals reviewed the lower court's detailed inquiry into the

nature of petitioner's estate in the subject property, including the

amount of his monetary investment, the purpose of the enact-

ment of the wetlands regulations, and the scope of petitioner's

knowledge of the permissible uses of the property at the time of

its purchase. It considered as well the accepted principles of

New York State law that, following the enactment of the

wetlands regulations, "the only permissible uses for the subject

property were dependent upon those regulations which were a

legitimate exercise of police power" (PA14a). Under these

circumstances, the court correctly determined that petitioner, an

es ©

11

experienced real estate developer, had no reasonable investment-

backed expectation of, and at no time possessed, a right to build

a one-family home upon the parcel (PASa-14a). Consequently

that purported right cannot be the basis for a takings claim.

Petitioner's contrary contentions are meritless. His description

of the Court of Appeals holding — "that a landowner has no

protectable property interest where the application of a pre-

existing land use regulation results in the elimination of all use

of land" (Pet., p. 14) — reflects a profound miscomprehension

of the court's opinion in this matter. His claim that the Tidal

Wetlands regulations constitute a per se taking (Pet., p. 14), is

self-evidently false. His assertion that the decision conflicts with

language contained in a footnote in this Court's holding in

Nollan v. California Coastal Commission, 483 U.S. 825 (1987)

(Pet., pp 16-17) overlooks a subtlety which this Court recog-

nized in Lucas (505 U.S. at 1015): the right to exclude strangers

from private property, at issue in Nollan and not implicated in

the case at bar, remains a reasonable expectation of private

property owners even where programs of regulation place

substantial limitations upon the use of property by the owner.

Indeed, this distinction was set forth with considerable clarity in

Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996),

which petitioner erroneously cites in support of his claims (Pet.,

pp 27-29). Noting that possessory interests, such as those

relating to an easement over property, are fixed at the time they

are created and cannot be extinguished by legislation or regula-

tion without compensation, the court in Preseault emphasized

the difference between those interests and regulatory restraints

on use (100 F.3d at 1540 [emphasis in original]):

This issue of title and ownership expectation must be

distinguished from the question that arises when the

Government restrains an owner's use of property,

12

through zoning or other land use controls, without

disturbing the owner's possession. Placing restraints on

an owner's use of her property invokes the regulatory

takings issue, rather than the question of the Govern-

ment's physical occupation of private property, and both

factually and legally raises significantly different issues.

In the regulatory taking cases the owner's reasonable

investment-backed expectations have been held to be

relevant to the question of whether a regulatory imposi-

tion goes too far in constraining the owner's lawful uses

of the property. [citation omitted] As the Supreme Court

makes clear, these two quite different situations call for

different analyses.

Petitioner's reliance upon other case authority in support of

his petition for a writ of certiorari is equally unavailing. His

claim that the Court of Appeals decision conflicts with the

decisions of other state courts—Vatalaro v. Department of

Environmental Regulation, 601 So.2d 1223 (Fla. App. 5th

Dist.), review denied, 613 So.2d 3 (Florida 1992); Lopes v.

Peabody, 417 Mass. 299, 629 N.E.2d 1312 (Mass. 1994);

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

1045 (N.J. Super. A.D. 1993); K & K Construction v. Depart-

ment of Natural Resources, 217 Mich. App. 56, 551 N.W.2d

413 (Ct. App. Mich. 1996)—is neither accurate nor relevant.

The fact that some states might take a different view than New

York of the scope of claims after a property transfer does not

alter in the slightest the reasonable investment-backed expecta-

tions of property owners in New York, where such claims are

restricted. This difference in expectation in various states does

not rise to a federal constitutional issue worthy of this Court's

review.

13

Moreover, these cases are readily distinguishable from the

matter at bar. In Lopes, the plaintiff challenged the validity of a

zoning regulation, rather than an award of damages (417 Mass.

299, 302); while petitioner in the instant matter raised no such

claim, the Court of Appeals indicated that such challenges were

available to property owners without regard to the date of

acquisition (PA11la-12a). In Vatalaro, a Florida intermediate

appellate court set forth the unexceptional proposition that

where "land is purchased with future development legitimately

anticipated and with no existing bar thereto," and “all economi-

cally viable use of the property has been taken" by a permit

denial (601 So.2d at 1229), a compensable taking occurs; that

holding is irrelevant to the instant matter. In Moroney, a New

Jersey intermediate appellate court held that an ordinance

permitting issuance of a variance in cases of "undue hardship"

to owners of substandard building lots created a reasonable

expectation of development to lot purchasers (268 N.J.Super. at

466-67, 633 A.2d at 1049); no comparable expectation is alleged

to derive from the Tidal Wetlands Act. In K & K Construction,

an intermediate Michigan appellate court held that a purchaser

may appeal the denial of a permit to build on wetlands even

when he purchased the parcel after the implementation of the

regulatory scheme in cases where the denial would render a

parcel worthless; in the instant matter, petitioner's parcel was

expressly found to retain considerable value under the uses

permitted by the DEC.

Furthermore, there is ample authority in other jurisdictions

supporting the court's holding in the matter at bar. See, e.g.,

Leonard v. Town of Brimfield, 423 Mass. 152, 66 N.E.2d 1300

(1996) (upon denial of special subdivision permit, purchaser of

property on flood plain subject to building restrictions "may not

complain about the loss of a right she never acquired"); Alegria

v. Keened, 687 A.2d 1249, 1253-54 (R.I. 1997) (investor's

14

expectation to develop wetlands property through permit process

was "unreasonable in light of this state's pervasive wetlands

regulations"); see also, Grant v South Carolina Coastal Council,

319 S.C. 348, 461 S.E.2d 388 (S.C. 1995) (property right

limited by regulations in effect at time of purchase); Hoeck v.

City of Portland, 57 F.3d 781 (9th Cir. 1995) (no investment-

backed expectation to maintain a building violative of codes in

effect at time of purchase); Hynziker v. State of Iowa, 519

N.W.2d 367 (Iowa 1994) (no reasonable expectation of building

permit when regulation requiring protection of burial ground

was in place at time of purchase).

In sum, the Court of Appeals holding that petitioner did not

acquire a right to construct a one-family dwelling at the time he

purchased the wetlands parcel is rational, fully consistent with

this Court's holdings and all authority cited by petitioner, and

otherwise unworthy of this Court's review.

15

CONCLUSION

As petitioner has not refuted the finding of the Court of

Appeals that his property suffered no substantial diminution in

value through the regulation, and as the court's opinion and

order are consistent in all respects with the decisions of this

Court and all other courts referenced in the petition, this Court

should deny the petition for a writ of certiorari. The questions

presented under the specific facts of this case are neither novel

nor significant, and do not warrant further review.

Dated: New York, New York

June 25, 1997

Respectfully submitted,

DENNIS C. VACCO

Attorney General of the

State of New York

Attorney for Respondent

120 Broadway

New York, New York 10271

(212) 416-8020

BARBARA G. BILLET*

Solicitor General

JOHN W. MCCONNELL

Deputy Solicitor General

GREGORY J. NOLAN

Assistant Attorney General

*Counsel of Record