Green wood in the bundle of sticks: Fitting environmental ethics and ecology into real property law

The second case decided by the Court of Appeals was Anello v. Zoning Board of Appeal, in which the court used the reasoning developed in Kim to hold that since "petitioner acquired her property after the enactment of the steep-slope ordinance, its enforcement does not deprive her of a property interest."378

The third case, Gazza v. New York Department of Environmental Conservation,379 considers a state wetlands preservation program. The case involved property purchased by petitioner in a "residentially-zoned district of which 65% had been inventoried as tidal wetlands."380 Petitioner applied for setback variances under the applicable state regulations31 to the New York State Department of Environmental Conservation (DEC), but the application was denied after an administrative hearing, based upon the failure of the petitioner to show that the variance would have no adverse impact on the wetlands.382 Additionally, upon the adoption of the decision of the hearing officer, the DEC found that "the proposed construction of a sanitary system threatened both marine life and humans, that other contaminants threatened the area and that flooding problems would be increased."383 The New York State Appellate Division, Second Department, upheld the lower court's dismissal of petitioner's takings claim on the grounds that where "a landowner does not have a reasonable investment-backed expectation that he would be able to build a residence on his parcel, he cannot claim a regulatory taking when his application for a permit to allow the construction of a building is denied."384

The Court of Appeals cites as justification for the decision in Gazza reasoning that is clearly based on the state legislature's findings of a stewardship toward its ecologically vital tidal wetlands. In affirming the decision of the Appellate Division, the court noted that:

In 1973, the Legislature concluded that "tidal wetlands constitute one of the most vital and productive areas of our natural world, and that their protection and preservation are essential." (L. 1973, c 790, 1). The Legislature also noted its concern that much of the State's tidal wetlands had already been irreparably destroyed or despoiled and the remaining wetlands were in imminent danger of the same fate. (id.). Pursuant to these findings, the Legislature enacted the Tidal Wetlands Act and struck a balance between ecological and economic consideration by preserving and protecting tidal wetlands while permitting reasonable economic use and development....

To implement this policy, the Legislature directed the Commissioner of Environmental Conservation to inventory all tidal wetlands in the State of New York (ECL 25-0201). The Commissioner was also empowered to regulate the use of inventoried wetlands as well as the areas immediately adjacent thereto.386

This reasoning clearly is supportive of the thesis herein, and represents the raison d'etre for green wood, which is the enforceability of legislative mandates to protect the environment. It also empowers states to act in their best interests and thereby is an immutable part of states' rights.