Second Department Affirms Denial of Takings Claims Against Town

Plaintiff owned vacant property in the Town of Wappinger (“Town”), sitting at the end of a private road traversing a bridge.  Plaintiff applied for a building permit to construct a new house on the property, but the Town denied the application as there was no legal access to the property as required by Town Law § 280–a and the analogous § 240–20 of the Code of the Town of Wappinger, since the road and the bridge were in such disrepair as to be virtually impassable. Plaintiff then brought an action against the Town, the Town’s code enforcement officer (“CEO”), and the Town’s zoning board of appeals (“ZBA”) for a declaratory judgment that state and local provisions requiring legal access to the property did not apply. The lower court denied Plaintiff’s motion for summary judgment and granted defendants’ cross motion, holding that the proposed construction was governed by Town Law § 280–a(1), and  Plaintiff appealed.

On appeal, the Appellate Division, Second Department held that despite Plaintiff’s claims, application of the statute did not produce a result that was absurd, unjust, or at odds with its facially evident purpose. In fact, it found that the plain language of § 280–a was unambiguous and, therefore, there was no basis to consider extrinsic materials to determine the legislature’s intent in enacting the statute. Moreover, even if extrinsic evidence were considered, the legislative history did not support Plaintiff’s claim that his proposed construction was outside the intended scope of the statute. Finally, the Court held Plaintiff failed to make a prima facie showing that application of § 280–a deprived him of a vested right to construct the new house.  As such, Plaintiff could not show damages for a categorical regulatory taking based on the denial of all economically beneficial use of the property without just compensation.

Thus, the Court remitted the matter to the Supreme Court, Dutchess County, for a declaration that the provisions of Town Law § 280–a and Code of the Town of Wappinger § 240–20 applied to the proposed construction of a dwelling on the subject property.

The case was Kellner v. Town of Wappinger, 145 A.D.3d 676 (2d Dep’t 2016).

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