Respondents' noncompliance with a statute they do not challenge therefore places
them in a different stead than successful regulatory takings claimants, who have typically
have been inoffensively going about their business at the time that a statute imposed a
burden on them. See, e.g., E. Enters. v. Apfel, 118 S. Ct. 2131,
2150-53 (1998)(an entity that had ceased coal mining operations decades before an
imposition of a cost upon them stated a regulatory takings cause of action),
Lucas, supra, 112 S. Ct. at 2889 (a property owner who did not have to
obtain a permit to develop single-family residences at the time he acquired a lot, as
owners of adjacent lots had done, stated a regulatory takings cause of action when a
newly-enacted state statute restricted him from doing so). Respondents' posture as such
affects the application of the various regulatory takings tests to their defense.
One test to determine whether a governmental action effectuates a taking entails a
comparison between the value taken from the property and the value that remains in the
property. Murr v. Wisconsin, 137 S. Ct. 1933, 1943-44 (2017). Any order to
correct issued by this Court would not "take" value from the subject premises in any
amount comparable to the value that Respondents' own neglect has already taken from
the subject premises. Another test analyzes whether a regulation deprives landowners of
"all economically viable use" of their property. Smith v. Town of Mendon, 4 NY3d 1, 9 (2004). Again, no
order to correct of this Court deprives the subject premises of any economically value use
on a scale comparable with Respondents' own neglect.
An evaluation of a regulatory takings claims "involves an examination of the 'justice