July 8, 2013

The Supreme Court, Suffolk County, has denied a village’s motion to dismiss a “regulatory taking” case, which was based on the denial of a wetland permit, and instead upheld the plaintiff’s right to go to trial, in Mulholland v. Village of Southampton, Index No. 09-3002.  The plaintiffs, who had owned the property in question long before the village adopted any wetland regulations, obtained a similar wetland permit from the NYSDEC to build a small house on the property.  The village’s zoning board denied permission to build, however, under the village’s own wetland code.  The plaintiffs subsequently commenced an action against the village, claiming that the ZBA’s denial of the permit constituted a “taking”  without the payment of “just compensation,” in violation of both the New York State Constitution and the Fifth and Fourteenth Amendments of the United States Constitution.  The village moved for summary judgment to dismiss the action, but the Hon. Paul J. Baisley, Jr., denied the motion and found that the plaintiff had presented sufficient evidence to allow the case to be decided at trial.  A trial date is expected this Fall.