Should the loss of property value at the former Jones-Carroll landfill property in Carroll justify a taxpayer-backed payment to the property’s owner?

That’s the question before state Supreme Court Justice Grace Hanlon. Briefs filed recently by attorneys for the town of Carroll and Carol Jones, executor of the estate of Donald Jones, Jones-Carroll Inc. and Sealand Waste LLC paint vastly different pictures of the aftermath of the 2007 town law that banned landfills in the town based on health and safety of town residents.

TOWN OF CARROLL’S ARGUMENTS

Town attorneys argue that bringing to an end a use variance that allowed operation of a landfill on the Jones-Carroll site with the 2007 town law banning landfills in the town doesn’t mean the Jones family or Sealand Waste, which wanted to expand the landfill, had land essentially taken through the town’s regulation. The court had ruled a retroactive zoning ordinance as was passed by the town in 2005 impacted the Joneses’ vested interest in the variance. The 2007 law is described as a health and safety ordinance by the town’s attorneys, and they say that has a different impact on the vested interest the landfill operators had through a 1989 use variance that allowed the landfill to operate.

“Because the 2007 law is for the health and safety of the town and its citizens, Plaintiffs’ takings claim based on a vested property interest in the variance falls flat and is without merit,” attorney Jeff Stravino argues on behalf of the town of Carroll.

Stravino goes on to argue the Jones family and Sealand haven’t proven the property has been stripped of all economically beneficial use or is otherwise not capable of alternative uses. The Joneses’ and Sealand have argued in court filings that building a residential home is unprofitable, installing a septic and well system is too expensive and a solar project would not work on the site. Stravino argues that there are other suitable uses for the site, including seasonal and year-round residential housing, including single-family, modular, and manufactured homes, and recreational vehicles; recreational uses, including hunting, hiking, and camping; and storage facilities, including garages, pole barns, and yard storage. He also argues there is no regulatory taking since the property’s value hasn’t decreased much over the past 18 years.

“Prior to the 2007 Law taking effect, plaintiffs’ property was assessed by the town’s assessor at $100,000,” Stravino argues. “Today, even by the most conservative of estimates, the property in its undeveloped state – and considering the existing 3-acre landfill – is worth at least $90,000. Thus, to the extent Plaintiffs argue that the court must compare the value of the property before and after the 2007 law took effect, Plaintiffs are unable to demonstrate virtually any diminution in value.”

JONES FAMILY, SEALAND WASTE CLAIM LOSSES

Daryl Brautigam of Brautigam and Brautigam LLP in Fredonia and Alan J. Knauf, of Knauf Shaw LLP in Rochester argue in favor of the Jones family and Sealand Waste argue that a regulatory taking is found where a government action destroys even a single “stick” in a property-owner’s bundle of rights. The state Court of Appeals has already found that Plaintiffs had a vested property right to operate the landfill on the entire property. Ending that property right, they say, constitutes a taking.

The attorneys further argue that the property is not capable of a reasonable return for any other use permitted in the Agriculture-Residential 1 zoning district.

“In its Memorandum of Law in response (“Def. Mem.”), Defendants admit that the only thing Plaintiffs can do with the Property is to try to sell it. But Defendant has provided no evidence to support its claims that the Property can be sold, or that if it was sold it would yield a reasonable return,” Brautigam and Knauf wrote. “Plaintiffs have demonstrated that the 2007 Law effected a regulatory taking because it has completely destroyed the value of the Property, resulting in a categorical taking. It has completely thwarted Plaintiffs’ investment backed expectations, and it forced Plaintiffs to bear these burdens.”

Brautigam and Knauf argue that the state Court of Appeals’s 2010 determination that the Use Variance to operate the landfill in 1989 outlasts the 2007 passage of anti-landfill town laws. They then argue that the analysis used in takings clause cases, courts have held a taking may occur even where the property’s value has not been reduced to $0, and courts look to the available uses remaining when assessing a property’s post-regulation value. The Jones family and Sealand Waste used the property as a landfill according to the use variance granted by the town but find future uses limited by the existence of the landfill.

“The 2007 law has eliminated all economically viable use of the property, and this has in turn eliminated all or virtually all of the property’s value,” Brautigam and Knauf wote. “Just as in 1989 when the defendants granted the use variance, the conditions at the property do not support its use for any other purpose. In fact, the conditions present at the property today – the presence of a former landfill – render it even less suitable for other uses today than it was in 1989. Given the property’s pre-existing constraints and the environmental issues stemming from the presence of the former landfill, no alternative use for the Property exists: put differently, the 2007 law has rendered the property worthless. Finally, given the town’s almost non-existent growth over the last decade, and the availability of ample land unhindered by the Property’s constraints, the market for the property exists only in the defendants’ hypotheticals.”

WHAT IT ALL MEANS

Years in court have ruled out using the 54 acres owned by the Jones family as a landfill. The open question now is whether or not the 2007 law banning landfills in Carroll is a regulatory taking – and if it is, whether or not the town has to compensate the Jones family and Sealand Waste for the money they claim to have lost.