Smith v. Town of Mendon, 177 (New York Court of Appeals) In another case revolving around property rights and condemnation, the New York Court of Appeals held last week that conservation restrictions on the use of private property do not constitute regulatory takings entitling the owner to compensation, as long as the owner does not lose the right to control access by the general public. The case arose in Mendon, N.Y., where Janet and Paul Smith own a 9.7-acre lot along Honeoye Creek. Portions of the land are considered environmentally sensitive and are included in four locally designated environmental protection overlay districts, where the use of property is severely limited. The Mendon Planning Board granted site plan approval for a single-family residence on part of the property outside the protected districts. However, it conditioned the approval on the Smiths’ placing a new restriction on the protected parts. The town would have had heightened police powers permitting the municipality to enter the property in case of a violation. That restriction was designed, according to the planning board, to “put subsequent buyers on notice that the property contains restraints which may limit development within these environmentally sensitive areas.” The Smiths refused and sued, accusing the town of orchestrating an unconstitutional taking of their property in violation of the Fifth Amendment. The majority decision in this case called the property right at issue “trifling” while one of the two dissents said the majority was “simply wrong”. The Smith’s attorney has indicated that he will seek certiorari at the United States Supreme Court. Currently before the U.S. Supreme Court is another property rights case, Kelo v. City of New London.
