Court Upholds Legality Of Key Pine Barrens Safeguard

Attorney General Spitzer and State Department of Environmental Conservation Commissioner John Cahill today hailed a court decision upholding a key element in the state’s effort to safeguard Long Island drinking water by protecting large tracts of land in Suffolk County from development.

"This is a significant victory for the Pine Barrens ecosystem and for more than 2.5 million Long Islanders who depend on aquifers under the Pine Barrens as their sole source of clean drinking water," said Spitzer. "This decision ensures the viability of the Pine Barrens protection plan that state, county and local officials worked so hard to create."

"Preserving the Pine Barrens not only protects a unique ecosystem and its flora, fauna and wildlife, it safeguards Long Island’s underground water supply," DEC Commissioner Cahill said. "During the Pataki Administration we have invested $36 million to preserve 3,600 acres of Pine Barrens land but we need the full array of preservation options made available by the Central Pine Barrens Comprehensive Land Use Plan. This decision sustains an important part of that plan."

In his April 27 decision, Suffolk County Court Judge Jack Cannavo ruled against landowner Robert Toussie who sued the Central Pine Barrens Joint Planning and Policy Commission over the development credits the commission had assigned to eight small parcels of land he owned in the Town of Brookhaven.

As part of a far-reaching 1993 state law to protect 50,000 acres in eastern Suffolk County and encourage compatible growth in an additional 50,000 acres, the commission created a Transferable Development Rights (TDR) program for landowners with property in the protected zone. Under the TDR program, the commission assigns development credits to environmentally sensitive land that can be transferred to development projects outside the Pine Barrens.

In June 1998, Toussie was assigned TDR credits worth $23,100 for the eight parcels of land he had purchased for $14,000. But Toussie sued the commission, claiming he should have been awarded $168,000 in credits.

In his decision in the case, Judge Cannavo ruled strongly in the commission’s favor, saying that Toussie "has failed to show an unconstitutional taking without compensation and in fact, the evidence before the court indicates that he has been generously compensated for the development rights of the land." Citing other cases in New York and South Carolina, Judge Cannavo also wrote that Athe concept of transferable development rights, while often challenged, is an accepted and constitutional land use planning device.’‘

This is the first lawsuit to challenge the legitimacy of an actual allocation of credits under the TDR program. Judge Cannavo’s decision upholding the program and the Pine Barrens protection plan sets a strong precedent under which any future lawsuits must be judged.