ELR Citation: ELR 21068
(N.Y. Mar 22, 1988)

The court holds that the New York Department of Environmental Conservation's (DEC's) failure to designate property as freshwater wetlands on a tentative map does not exempt the property from regulation under the state Freshwater Wetlands Act, and tentative designation does not constitute a taking. The court first holds that DEC has jurisdiction under the Freshwater Wetlands Act to identify, map, and regulate potential freshwater wetlands until the agency promulgates a final map. Otherwise, the provision of the law requiring permits for activities conducted prior to issuance of the final map would be meaningless. The mere fact that the land was not placed on the first tentative map does not deprive DEC of its legislatively designated jurisdiction over the lands. The court then holds that the tentative designation of the property as freshwater wetlands does not constitute an unlawful taking or violate due process. The designation does not prohibit development or convert ownership of the land but merely requires the landowners to obtain administrative permits to continue development. The court holds that the landowners' takings claims are premature because they have failed to exhaust the available administrative remedies by not seeking a development permit. The court holds that plaintiffs' due process rights have not been violated, since upon the tentative designation of the wetlands a public hearing provided plaintiffs adequate notice and opportunity to be heard. The court holds that an individual hearing is not required by the statute. The court holds that the statute does not allow construction that was initiated prior to the tentative wetlands designation. The court holds that the plaintiffs' reliance on a 1984 tentative map that did not designate their property as wetlands does not equitably estop DEC from enforcing the subsequent mapping designation. Although the statute does not authorize a second tentative mapping, nothing prohibits it. Moreover, recent amendments creating additional administrative review and appeal procedures assure that plaintiffs are not left without remedies if they have suffered an undue hardship from the second tentative mapping.

Counsel for Appellants
Laurel A. Wedinger, John S. Zachary
75 Little Clove Rd., Staten Island NY 10301
(718) 442-2828

Counsel for Respondents
Robert Abrams, Attorney General
Two World Trade Center, New York NY 10047
(212) 488-3313

WACHTLER, C.J., and SIMONS, KAYE, ALEXANDER, and HANCOCK, JJ., concur.

TITONE, J., taking no part.

In each case: Order affirmed, with costs.