## Facts

- Owners of 627 Smith Street in Brooklyn held waterfront property fronting the Gowanus Canal, a navigable waterway, with associated riparian rights of access.
- A municipal waste facility across the canal used tugboats towing barges to move refuse from the Hamilton Avenue Marine Transfer Station.
- Tug-and-barge traffic occurred repeatedly (about six trips per day, six days per week) over an extended period.
- The tandem barges either struck the owners’ bulkhead and related structures or passed so close that safe mooring and practical water access along the frontage became impossible.
- The owners attempted repairs, but recurring impacts and close passages continued to damage the bulkhead and disrupt access.
- The owners amended their pleadings to assert inverse condemnation based on de facto appropriation of riparian rights.
- After a nonjury trial, the court awarded $775,200 in compensation and $245,319.26 in attorneys’ fees under EDPL 702(c).

## Issues

1. Whether the municipality’s continuous tug-and-barge operations that destroyed or rendered unusable the owners’ bulkhead and effectively denied safe water access constituted a de facto appropriation (inverse condemnation) of riparian rights requiring just compensation.
2. Whether the trial court’s valuation of the taking (based on comparable sales evidence) and its award of attorneys’ fees under EDPL 702(c) were supported by the record.

## Decision

- The appellate court affirmed the judgment insofar as appealed from, with costs.
- The court held that the municipal operations constituted a de facto appropriation/inverse condemnation of the owners’ riparian rights.
- The damages award was upheld as within the range supported by expert valuation evidence comparing waterfront properties with and without riparian rights.
- The attorneys’ fee award under EDPL 702(c) was affirmed.

## Legal Principles

- A de facto appropriation is established when governmental action intrudes on or substantially interferes with property rights to a degree that amounts to a constitutional taking requiring compensation.
- Riparian rights, including access to a navigable waterway from adjoining land, are protectable property interests for takings purposes.
- Continuous, systematic government operations can constitute a taking when they effectively and permanently deprive an owner of a distinct property interest, even absent a formal condemnation.
- Compensation for a taking of a particular property interest may be measured by the diminution in value attributable to the loss of that interest, as shown by competent comparable-sales and expert evidence.
- In a qualifying inverse-condemnation context, attorneys’ fees may be awarded under EDPL 702(c) where supported by the record.

## Conclusion

The court upheld findings that recurring municipal barge operations effectively eliminated the owners’ riparian access and destroyed necessary waterfront structures, amounting to an inverse condemnation of riparian rights, and it affirmed both the valuation-based compensation and the EDPL 702(c) attorneys’ fees award.


627 Smith St. Corp. v. Bureau of Waste Disposal of Dep’t of Sanitation of City of N.Y., 289 A.D.2d 472 (N.Y. App. Div. 2d Dep’t 2001)