New York Appellate Division, Second Dept.
Wetlands Designation Constitutes Taking But 75 Percent Increment Not Supported.  Owner purchased property situated on the eastern shore of Staten Island and thereafter, the property was designated as wetlands.  NYC condemned the property for stormwater management and owner sought damages in the condemnation proceeding, maintaining that the imposition of wetlands regulation was an unconstitutional taking.  The parties stipulated that the value of the property without the wetlands regulation exceeds $4 million and the value after regulation is $248,600.  Following a bench trial, the Supreme Court, Richmond County, ruled that there is a reasonable probability that the regulation would be found to be an unconstitutional taking and awarded owner $3.5 million.  This figure was the product of the Court’s finding that the unconstitutional taking entitled owner to 75% of the difference between the unregulated value and the regulated value.  NYC appealed and the Second Dept. sustained the “probability of an unreasonable taking” finding, but reduced the award.  The Court cited the "reasonable probability—incremental increase rule" - “if the owner proves a reasonable probability that the regulations on the property could be invalidated in court as an unconstitutional taking, he or she is entitled to an increment above the value of the property as regulated…”.  However, the calculation tendered by owner in rendering the award amount “was not warranted by the facts”, whereas the City appraiser relied upon “market data and provided a reasonable explanation for the conclusions reached”.  The award was reduced to $1,625,688.  Matter of New Cr. Bluebelt Phase 3, Staten Is. Land Corp. (City of New York), 2019 NY Slip Op 00128, Appellate Division, Second Department, January 9, 2019  opinion