New York Law Journal: Inverse Condemnation or De Facto Taking – What’s in the Name?

Michael Rikon authored a column in the February 23, 2016, edition of the New York Law Journal titled, “Inverse Condemnation or De Facto Taking: What’s in the Name?  In his article, Mr. Rikon discusses the difference between inverse condemnations and de facto takings, and that courts err in interchangeably using these terms.

Mr. Rikon reviews the four different categories of inverse condemnations, also known as regulatory takings.  Mr. Rikon covers Lingle v. Chevron U.S.A., 544 U.S. 528 (2005), United States v. Causby, 328 U.S. 256 (1946), Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Penn Central Transportation Company v. New York City, 438 U.S. 104 (1978), Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).

Next, Mr. Rikon analyzes de facto takings, or physical takings, under Buffalo v. J.W. Clement Company, 28 N.Y.2d 241 (1971), Lorreto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419 (1982), and Corsello v. Verizon N.Y., 77 A.D.3d 344 (2d Dep’t 2010), aff’d, 18 N.Y.3d 777 (2012).

Last, Mr. Rikon ties all of this together in a wetlands context where, for example, the New York State Department of Conservation designates a property as wetlands.

If the designation impedes permit issuance, there is a two-step process under De St. Aubin v. Flacke, 68 N.Y.2d 66 (1986), to determine whether the wetlands designation constitutes a regulatory taking.

If the wetlands property is condemned before the property owner can challenge a denial of a permit, there is a formula under Chase Manhattan Bank v. State, 103 A.D.2d 211 (2d Dep’t 1984), and reaffirmed under Matter of City of New York [Paolella], 122 A.D.3d 859 (2d Dep’t 2014), which utilizes a 75 percent increment above the regulated value of the property to help determine the post-condemnation amount of damages.  The increment represents the premium a reasonable purchaser would pay for the probability of a successful judicial determination that the wetlands designation was confiscatory.

The full article is available on the New York Law Journal website:

Posted in Eminent Domain, Inverse Condemnation, Regulatory Taking, Uncategorized, Wetlands
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