Ryder v City of New York

[*1] Ryder v City of New York 2006 NY Slip Op 52672(U) [21 Misc 3d 1141(A)] Decided on August 9, 2006 Supreme Court, Putnam County O'Rourke, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2006
Supreme Court, Putnam County

Dean Ryder and WAYNE RYDER, Plaintiffs,

against

The City of New York, Defendant.



503/2002

Andrew P. O'Rourke, J.

This action, of such long duration, occurred when the City of New York Department of Environmental Protection (DEP) refused to allow the use of two parcels of land Lot 41 and Lot 47, Town of Kent as building lots due to inadequate septic systems.

The DEP has a justifiable and long term interest in the use and protection of its watershed land which provides 1.2 billion gallons of high-quality drinking water everyday to approximately ten million people (residents of NYC, surrounding counties of Westchester, Putnam, Orange and Ulster plus the tourists who come into NYC every day.)

The New York City Watershed is composed of 19 Reservoirs and extends 125 miles north and west of New York City (NYC) (Court Ex. 1). There is little or no filtration of the water flowing into NYC by mechanical or other treatment.

Prior to 1994, NYC had basically let each county control development of lands bordering on the watershed. However, the federal government intervened and left NYC no choice but to strictly control water and land use in the watershed or construct a huge filtration plant at the cost of approximately eight billion dollars. (Attached as Ex. D to Plaintiff brief is a copy of the 1997 decision of Justice Hickman which clearly and succinctly sets out the history of the above).

The Plaintiffs became owners of the subject Lots 41 and 47, by part of an inheritance from their uncle Merritt Ryder. Prior to the NYC Watershed Regulation, the Putnam Department of Health (PCDOH) routinely approved septic systems where the slope was in excess of 15% of grade, as was the situation here. In 1988 Plaintiff's uncle received a subdivision approval from PCDOH. Several dwellings were constructed thereon including adjoining lots (42 and 43). The subject Lot 41 is a lake front piece of property approximately one acre in a very desirable section of the Town of Kent. Lot 47 is within view of Barrett Pond and is also approximately one acre and has a right-of-way access to the pond. Both were deemed to be buildable lots by the appraiser for DEP (Plaintiff's Ex. X). In 2000 the Plaintiffs sought a septic permit for Lot 41 but it was denied by NYC under their watershed regulations.

Before these NYC regulations went into effect PCDOH would have granted such a [*2]variance but after NYC took over control of the permit process and approval, it became an absolute requirement that a septic system needed a grade of less than 15%. No permit was ever granted by DEP for a grade of 20%. The scope of the watershed regulation covers all land use within the watershed. Prior to the watershed regulation PCDOH allowed slopes of over 20% by using the "fill" method. This system allowed the property owner to grade the slope to provide a safe septic field.

There is no question that Plaintiff's claims were ripe under the Second Department Decision in Loft Corp. V City of New York, 260 AD 2nd, 549, 688 NYS 2nd 620, (1999). The sole reason for the failure to use these lots as buildable was the denial by DEP of septic permits. Even after Plaintiff had appealed these decisions, permission was denied. The Plaintiffs were in the position of having non-conforming prior uses. The Watershed regulation, while a legal and necessary government control prevented Plaintiffs from using these lots as buildable and therefore since there was the taking the City must pay in damages.

The Plaintiff's appraisals (Pl. Ex. 1 and 2) shows that before, the taking, the value of each parcel was $292,695. The Court rejects this figure as too high for several reasons. First Comparable I of Plaintiff's appraisal shows a sale by owners to NYC for $184,000. Comparable One suffered from the same disability as the subject lots, i.e. not a buildable or usable lot due to the watershed regulations. Secondly, this figure for this comparable which would have been the taking value had not these lots sold as accessory land to other parcels, must take into account the value of Lots 41 and 47 when added to the price of Lots 43 and 42.

The City appraiser, Mr. Sauer, realized that the addition of land would raise the selling price:

Q."And that's despite the fact that it's only a single acre building lot?

A.That is correct. Larger lots sell for more than smaller lots when you're dealing with a building lot, typically, in the market place." (Emphasis added, Day 3, p. 9,lines 6-11)

The Plaintiff later sold Lots 41 together with 42, which contained a house for $725,000. NYC appraised Lot 41 for $103,000 as a building lot when the City had bought a comparable one for $184,000. This Court decided that Lot 41 had a value of $100,000 as part of the value of the sale of Lots 41 and 42. Thus this is the damages for the taking of Lot 41.

As to Lot 47, the Plaintiff again applied for a septic permit and it was refused by the DEP and on appeal it was again rejected.

Lot 47 was sold as accessory to Lot 43 for $362,500. While Lot 47 was not as desirable as Lot 41 the Court credits $50,000 of the sale price as due to the addition of Lot 47 and its right-of-way to Barrett Pond. This constitutes the damages for the taking of Lot 47.

As to the argument advanced by the City after three days of non-jury trial, 40 exhibits and extensive briefs, the Court rejects same.

Submit order on notice.

Dated: August 9, 2006

Carmel, New York

______________________________Andrew P. O'RourkeJustice of the Supreme Court