and the character of the government action. 438 U.S. at 124, 98 S. Ct. at 2659.
By now the criteria for applying these generalized factors in zoning cases is fairly well established. In summary, as stated by the Supreme Court in Agins v. Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980), the "application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests . . . or denies an owner economically viable use of his land." Id. at 260, 100 S. Ct. at 2141 (citations omitted).
Elias says that the ordinance advanced no legitimate town interests. For reasons already stated, the court rejects this contention.
Elias also claims that the ordinance has "destroyed" the "marketability" of the land. His brief asserts that he suffered not from a "mere diminution in value" but from a loss of any "economic viability" in the property. He characterizes the ordinance as amounting to a "confiscation".
This is patently not so. For residential use defendants' experts valued the property at about $ 530,000, and Elias's experts at about $ 350,000. Even Elias's figures hardly bespeak confiscation.
Elias says that he has spent some $ 640,000 on the property. He does not break down this figure, but presumably a part of it represents his purchase price in 1986 of $ 454,755.20 and a part the expenditures he made in preliminary planning for a shopping center, including the preparation of environmental impact reports. He also says he has been "deprived of a reasonable rate of return", estimated to be $ 250,000, on his $ 640,000 for a total loss of $ 890,000. He submits no documentation to support this estimate, but argues that he had a reasonable investment-backed expectation that he would not be subjected to such a loss and indeed would be permitted to build his shopping center and realize a profit.
To establish a "taking" it is, of course, not enough to show a subjective expectation of making a profit or even of recovering all of one's investment. The test must be an objective one. The expectation must be reasonable in that it is one that the law will recognize. In the context of this case, the question is whether a landowner has as a matter of law an assurance that the zoning regulations will never change.
The question almost answers itself. Nothing in the town's zoning laws or in any New York State law suggests that such an assurance has been made either explicitly or implicitly. If there is one thing that the history of zoning regulation has established it is that as time passes and population increases (or diminishes) zoning restrictions change.
The Fifth Amendment itself does not guarantee to an investor in land that the existing zoning regulation will remain unchanged. See, e.g., Park Ave. Tower Assocs v. City of New York, 746 F.2d at 140; Pennsylvania Cent. Transp. Co. v. City of New York, 438 U.S. at 130. To hold otherwise would be to draw into question the effective power of a locality to plan for the future needs of its residents. Nor does the loss of profit or of the right to make the most profitable use of the property constitute a taking. Sadowsky v. New York, 732 F.2d 312, 317 (2d Cir. 1984). The key question is whether other persons "might be interested in purchasing all or part of the land" for permitted uses. Pompa Constr. Corp. v. Saratoga Springs, 706 F.2d 418, 424 (2d Cir. 1983).
The very situation faced by the Town of Brookhaven shows the wisdom of these holdings. The town contains a vast area whose population has been increasing rapidly. As a result, the complexity and character of the community have also changed rapidly. Someone investing in land in July 1986 hardly required a crystal ball to anticipate that the rational use of land in the town would require further comprehensive planning and consequent zoning changes to protect what its responsible officials deemed the interests of the residents.
Had the town's 1988 ordinance so diminished the value of the land that it could not be sold for more than a nominal amount, the court would have before it a different case. But, as noted above, the property has substantial value as zoned for residential use. Regulations causing diminution in value of land by large percentages have consistently been held not to be takings. See, e.g., Hadacheck v. Sebastian, 239 U.S. 394, 405, 36 S. Ct. 143, 144, 60 L. Ed. 348 (1915) (87-1/2%); Euclid v. Ambler Realty Co., 272 U.S. 365, 384, 47 S. Ct. 114, 117, 71 L. Ed. 303 (1926) (77%); Pompa Constr. Corp., 706 F.2d at 420 n. 2, 424 (2d Cir. 1982) (77%).
The court concludes that the town's zoning ordinance did not accomplish a "taking" of Elias's property.
Elias has made various state law claims, both substantive and procedural, none of which raises any substantial issue of federal law. The court declines to exercise pendent jurisdiction to decide the validity of these state law claims. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988).
The motion of defendants for summary judgment is granted, and the complaint is dismissed. So ordered.
Dated: Brooklyn, New York
January 9, 1992
Eugene H. Nickerson, U.S.D.J.
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