DECISION and ORDER At the close of the trial in this eminent domain proceeding, Claimant moved to amend its claim to conform to the evidence presented at trial pursuant to Rule 3025(c) of the CPLR, to assert an additional claim against the CITY for inverse condemnation of its property. The CITY formally vested a portion of Claimant’s property pursuant to the Eminent Domain Procedure Law on December 6, 2016. During the trial to determine the value of the property taken, Winston Von Engel, the CITY’s expert zoning witness, testified that a portion of the property taken by the CITY was mapped as parkland and that from the point that it was mapped as parkland, the Claimant would not be given a permit by the CITY to build any structures on it. Claimant argues that the act of mapping their property as a park and the resulting prohibition on any development constituted an inverse condemnation of a temporary nature for the period from July 29, 2009, when the CITY approved the mapping of the land as a park, until December 6, 2016, when CITY vested the property. The CITY argues that Von Engel was mistaken in his testimony that the Claimant would not be allowed to build on the property mapped as a park. The CITY also argues that any claim for an inverse condemnation is time barred and that Claimant cannot show an inverse condemnation where it has not actually been denied a permit to develop. An inverse condemnation occurs where an entity possessing the power of condemnation has intruded onto a landowner’s property and interfered with their property rights to such a degree that the conduct amounts to a constitutional taking (see O’Brien v. City of Syracuse, 54 NY2d 353, 357 [1981]; Corsello v. Version NY, 77 AD3d 344 [2d Dept 2010]; Sarnelli v. City of New York, 256 AD2d 399 [2d Dept 1998].) Claimants here do not claim a physical ouster or invasion of their property, but that the restrictions on building on parkland prohibited them from developing their property. This is in essence a claim of a regulatory taking. While government may regulate property, if regulation goes too far it will be recognized as a taking (Pennsylvania Coal Co. v. Mahon, 260 US 393, 415 [1922]). Since Pennsylvania Coal, the United States Supreme Court has developed an analytical framework for determining when a regulation goes so far as to constitute a taking. A regulation constitutes a taking per se only in the extraordinary circumstance where no productive or economically beneficial use of land is permitted (Lucas v. South Car. Coastal Council, 505 US 1003, 1014 [1992]; TahoeBSierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 US 302 [2002]). A zoning regulation will not constitute a taking unless it prohibits all reasonable use of a property (Village of Euclid v. Ambler Realty Co., 272 US 365 [1926]). A property owner must suffer a literal total loss in value to trigger liability on the part of the government for a categorical taking (see Lucas, 505 US at 1019; see also Tahoe Sierra, 535 US at 330). However, even if the regulations do not eliminate all of the economic value of a property, they may constitute a taking under the doctrine set forth by the United States Supreme Court in Penn Central Transp. Co. v. City of New York, 438 US 104 (1978). At oral argument, Claimants counsel stated that they were asserting a Penn Central claim rather than a categorical Lucas claim. A Penn Central analysis is an “essentially ad hoc, factual inquiry” in which the court considers: (1) “[t]he economic impact of the regulation on the claimant”, (2) “the extent to which the regulation has interfered with distinct investment-backed expectations”, and (3) “the character of the governmental action” (id at 124; see also Palazzolo v. Rhode Island, 533 US 606, 617 [2001]). A court must make an hoc determination whether a regulation constitutes a taking based upon the particular circumstances of the case (Tahoe-BSierra, 535 US at 322; Yee v. City of Escondido, 503 US 519, 523 [1992]). The determination turns on the extent of the regulation=s economic impact and the degree to which it interferes with legitimate property interests (Lingle v. Chevron USA Inc., 544 US 528 [2005]). A mere diminution of value is not sufficient to constitute a taking (Penn Central 438 US 104 [1978]). The court must bear in mind that “[g]overnment could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law” (Lingle at 538, quoting Pennsylvania Coal Co. v. Mahon at 413). The Court must look to the evidence presented at trial to determine the extent to which the CITY’s mapping of a portion of the property impacted the property. The only evidence presented at trial was Von Engle’s testimony that the Claimant would not have been permitted to build on the portion of the property that was mapped parkland even before it was vested. While the CITY’s attorneys assert that Von Engel was mistaken, the CITY did not present any evidence at trial demonstrating that he was mistaken. However, even accepting Von Engel’s testimony as true, it was not sufficient to establish a significant diminution in value or an interference with investment backed expectations that would constitute a taking under Penn Central. First, Claimant presented no evidence from Von Engel or any other witness as to what extent the parkland restrictions reduced the value of Claimant’s property. Von Engel did not testify that Claimant could not make any economic use of the property. Von Engel testified that while Claimant could not build on the portion mapped as parkland, they could use development rights from that portion on the remainder of the property. Specifically, Von Engel testified “You won’t be able to get a permit to build within it, but you can draw development rights from it”. He further stated “It [the Claimant] could not have built a structure there. It could have used floor area from the parcel, but not build within the parcel.” Von Engel did not testify that the total allowable buildable area for the whole property would be diminished by the mapping of a portion as parkland. Second, there was no evidence that the mapping of a portion of property interfered with any development plans of the Claimant. There was no evidence presented that Claimant attempted to obtain a permit to build on the property that was denied or that any actual plans it had for the property were frustrated. Given that only a portion of the property was mapped as parkland, it is not evident that even a total ban on building on that portion would have prevented development on the remainder of the property. For these reasons, the evidence at trial was not sufficient to make out a prima facie case of a Penn Central taking. Further, as the mapping of the property occurred on July 29, 2009, a claim of inverse condemnation would be time barred. A claim for injury to property is governed by a 3-year statute of limitations (CPLR 214[4]). The statute period runs from the time of the injury, not the time of discovery (see Savo v. City of New York, 208 AD3d 1377 [2d Dept 2022]; Sarnelli v. City of New York, 256 AD2d 399, 400-01 [2d Dept 1998]; Matter of the City of New York [South Richmond Bluebelt Phase 3], 47 Misc. 3d 1228(A) [Sup Ct, Richmond County 2015]). Claimant’s argument that CPLR 203(g) allows a Claimant to file a claim within two years from discovery of the inverse condemnation is flawed. CPLR 203(g) provides: “where the time within which an action must be commenced is computed from the time when facts were discovered or from the time when facts could with reasonable diligence have been discovered, or from either of such times, the action must be commenced within two years after such actual or imputed discovery or within the period otherwise provided, computed from the time the cause of action accrued, whichever is longer.” Thus, by its terms, CPLR 203(g) applies only to those causes of action where the statute provides that limitations period begins to run from discovery. Section 203(g) simply limits how much time after discovery such an action must be commenced, it does not provide for the limitations period to run from discovery in all actions. It is still unsettled in New York whether a physical invasion or encroachment by an entity with condemning authority, that is not permanent in nature constitutes an inverse condemnation or a trespass. However, this distinction is not relevant to the regulatory taking claim here. Where injury to property, whether trespass or an inverse condemnation, is continuing in nature, and not permanent, it gives rise to successive causes of action each time there is an interference with the person’s property. Relief is not barred by the statute of limitations for continuing property interferences and any resulting damage that occurred within three years of commencing the action (509 Sixth Avenue Corp v. New York City Transit Authority, 15 NY2d 48 [1964]; Pappenheim v. Metropolitan El. Ry. Co., 128 NY 436 [1891]; Galway v. Metropolitan El. Ry. Co., 128 NY 132 [1891]). In this case, even assuming the mapping had constituted an inverse condemnation, its continuing interference with Claimant’s property ended more than 3 years ago, on December 6, 2016, when the CITY took title to the property. Thus, the claim of inverse condemnation is time barred, even if the doctrine of continuing injury were applied. For the above reasons, Claimant has not demonstrated a valid cause of action for inverse condemnation. WHEREFORE, it is hereby ORDERED that Claimant’s motion to amend its claim is denied. This constitutes the Decision and Order of this Court Dated: February 28, 2023
