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MATTER OF GAZZA v. DEC

89 N.Y.2d 603 (1997)

679 N.E.2d 1035

657 N.Y.S.2d 555

In the Matter of Joseph F. Gazza, Appellant, v. New York State Department of Environmental Conservation, Respondent.

Court of Appeals of the State of New York.

Decided February 18, 1997.

Attorney(s) appearing for the Case

Esseks, Hefter & Angel, Riverhead (Steven R. Angel and John M. Wagner of counsel), for appellant.

Dennis C. Vacco, Attorney-General, New York City (Gregory J. Nolan, Barbara Gott Billet, Peter H. Schiff, John J. Sipos and Michael Belohlavek of counsel), for respondent.

Bracken & Margolin, Islandia (John P. Bracken of counsel), James S. Burling and Stephen E. Abraham, of the California Bar, admitted pro hac vice, for Pacific Legal Foundation, amicus curiae.

John A. Humbach, White Plains, for Audubon Council of New York State and others, amici curiae.

Wilmer, Cutler & Pickering (William A. Butler, David A. Westbrook and James F. O'Reilly, of the District of Columbia Bar, admitted pro hac vice, of counsel), and James T.B. Tripp, New York City, for Environmental Defense Fund, amicus curiae.

Chief Judge KAYE and Judges BELLACOSA, LEVINE and CIPARICK concur with Judge SMITH; Judge WESLEY concurs in result in a separate opinion; Judge TITONE taking no part.

SMITH, J.

The primary issue in this case is whether the denial of a building variance pursuant to environmental regulation effects an unconstitutional taking (US Const Fifth Amend; NY Const, art I, § 7) for which the landowner must be justly compensated. Petitioner argues that the denial of a variance due to legislation enacted to preserve wetlands is a taking despite the fact that the legislation was fully...

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