Determining whether or not a government regulation constitutes a “taking” for the purposes of the Fifth Amendment (“…nor shall private property be taken for public use, without just compensation”) can be a complex endeavor. The law of regulatory takings is characterized by a body of U.S. Supreme Court law that often tends to create questions more than it provides answers. Nonetheless, in New York, some clarity has been achieved by the recent Second Department decision in Matter of New Creek Bluebelt, Phase 3 (Baycrest Manor), 156 A.D.3d 163 (2d Dep't 2017).

It addressed three important issues in the field of regulatory takings and, together with other recent cases from that department, provided some guidance for the future.

The underlying case was not a regulatory taking per se. Rather, the City of New York condemned property via eminent domain that was 100 percent wetlands. Had the City not taken title, the owner could have filed an inverse condemnation action against the N.Y.S. Department of Environmental Conservation, claiming that the wetlands restrictions were a regulatory taking. Therefore, in this condemnation action the just compensation was equal to the property's value as regulated wetlands, plus that additional amount that the owner could have received as a result of the regulatory takings action. For the curious, this methodology is spelled out in Berwick v. State, 107 A.D.2d 79, 84 (2d Dep't 1985).