REGULATORY TAKINGS

Environmental regulations can also be a major issue for waterfront property owners. State and local wetlands regulations can, in some cases, go so far as to constitute an unconstitutional “taking” of property in violation of the Fifth Amendment to the U.S. Constitution and comparable provisions of the New York State Constitution, if they effectively deprive the property owner of all economically beneficial or productive use of the land.

In 2003, I was part of the team that won a landmark case establishing that the denial of a wetlands permit for property located on the Shinnecock Bay in the Village of Southampton constituted a “taking” for which the State was required to pay just compensation. This case, Friedenburg v. New York State Department of Environmental Conservation, 3 A.D.3d 86 (App. Div. 2d Dep’t 2003) , is one of a very few cases in the United States in which a court has required one government to compensate a property owner because of a regulatory taking.