Posted On: April 16, 2007

Second Circuit Rejects Section 1983 Property Rights Claim

The Second Circuit Court of Appeals overturned a decision by the district court that found a property owner was not bound by a restriction contained in an old subdivision and that the Town had violated the property owners’ rights by refusing to issue a certificate of occupancy for a house on the property (O’Mara v Town of Wappinger). At the heart of the case is whether, under New York law, a notation on a subdivision map that was never recorded in the chain of title to the property binds subsequent purchasers of that property.

The O’Mara’s, as a result of a tax foreclosure, purchased vacant land for which they received a building permit for a house and temporary certificate of occupancy before the Town declared that the land was supposed to be retained as vacant open space and issued a stop work order. The lot in question was part of a 1963 subdivision which contained a notation that the lot was “open space”. Yet there was no other record in the county clerk’s office that would alert a purchaser of any restriction and the map was not recorded in land records in the manner of a deed so that it would appear in a search of the title.

The Circuit Court held that it could find no case law on the issue of whether such an open space restriction, noted solely on a subdivision map, is binding on subsequent purchasers. It therefore certified the question to the New York Court of Appeals. Having concluded there was no clear answer to that question, the Court also reversed the finding of the district court that the refusal by the Town to issue a certificate of occupancy was a violation of 42 U.S.C. section 1983. Instead the Court held that, as the meaning of the law was uncertain, the O’Mara’s had no “clear entitlement”. The Court held that even were the New York Court of Appeals to subsequently determine the 1963 open space restriction is not binding “the uncertainty that leads us to certify this issue means the O’Maras did not have a ‘clear entitlement’ to a certificate of occupancy and therefore no cognizable property interest that would support a violation of their right to substantive due process”.

Posted On: April 4, 2007

Court of Appeals Interprets New York City Watershed Regulations

Construction within the New York City Watershed located in Putnam County is regulated, in part, by the New York City Department of Environmental Protection (DEP). The New York Court of Appeals, in Nilsson v Dept. of Environmental Protection, limited the authority of DEP to regulate storm water runoff when reviewing a request for a variance from the fill requirements for the subsurface sewage treatment systems (SSTS) of a residence within the watershed.

The Court found that the DEP could not “extend its jurisdiction to otherwise unregulated sources of degradation or contamination.” The Court also found that the DEP could not require the applicant to prove hardship by evidence of projected financial hardship when the submissions by the applicant demonstrated that it would be impossible to construct any residence without the variances. Therefore the Court found that where there was a hardship claimed of impossibility of building a residence on the parcel “there is little more to be said.”

However, the Court remitted the matter to the Supreme Court. During the review process DEP had asked for information concerning the applicant’s real estate holdings in the immediate area, which the applicant refused to provide. The Court agreed with the Appellate Division’s finding that such a request was over broad. Yet, the Court did find that it was reasonable to request information about ownership of contiguous lots, which might allow the applicant to minimize any hardship. As a result the Court directed that there be further proceedings on that issue.