South-Western Legal Studies in Business

Imposition of New Conservation Restriction Not a Taking
Description New York high court held that the imposition of a more restrictive easement on property as a condition of a construction permit was not a taking. The new conservation restriction did not differ significantly from the old and it granted the town new enforcement powers.
Topic Real and Personal Property
Key Words Conservation Restriction; Easement; Taking
C A S E   S U M M A R Y
Facts The Smiths owned a 10 acre piece of land in Mendon, N.Y. Various parts of their land were subject to four different "environmental protection overlay districts" (EPODs). They could not build on a steep slope area, or in a floodplain, or next to a creek, or in certain wooded areas. When they applied for a building permit for a single-family home on the non-EPOD portion of their property, the city granted the permit subject to a new conservation restriction. The new restriction was similar to the existing EPODs, but imposed new limits on land use. It also gave the city the right to enter the property to safeguard environmentally sensitive parcels. The Smiths challenged this restriction, contending that it was a taking. The trial court and appellate division held for the city. The Smiths appealed.

Affirmed. The terms of the proposed Grant of Conservation Restriction included the preexisting EOPD regulations. The major differences were that the conservation easement encumbered the property in perpetuity, whereas the town could amend its EPOD ordinances. Also, the restriction gave the town greater enforcement power. Under EPODs, the town could only issue citations for violations. With the conservation restrictions, it could seek injunctive relief. This does not constitute a taking because the new restriction is consistent with existing rules, there is no physical taking of the property, and the impact on the value of the property is small.

Citation Smith v. Town of Mendon, 789 N.Y.S.2d 696 (Ct. App., N.Y., 2004)

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