Although I agree with the majority insofar as they conclude that the provisions of the regulations concerning the proceedings for the issuance of a permit are not unconstitutional per se, I disagree with them that the denial of a permit to petitioners was irrational and constituted a taking of their property without just compensation.
The commissioner’s determination denying petitioners’ application for a permit was rationally based on the evidence. The petitioners’ evidence was superficial and not buttressed by either expert or documentary proof. In view of the significant questions which petitioners left unanswered and the important ecological and flood control purposes of the Wetlands Act, it was rational to deny the application.
Petitioners further contend that the respondent’s determination constitutes a taking without just compensation under ECL 24-0705 (subd 7) and that the commissioner should be directed to decide to either issue the permit or proceed to condemnation. The petitioners contend that the Wetlands Act is a taking statute denying to the owner the reasonable use of their property. The wetlands statute indicates a legislative intent to comply with the standards enunciated by the courts in determining whether a particular land use regulation constitutes a "de facto taking”, and represents an attempt to survive constitutional infirmity by providing for compensation under circumstances which constitute a "de facto taking.” ECL 24-0705 (subd 7) reads as follows: "In the event that the court finds the action reviewed constitutes a taking without just compensation, and the land so regulated merits protection under this article, the court may, at the election of the commissioner, either (i) set aside the order or (ii) require the commissioner to proceed under the condemnation law to acquire the wetlands or such less than fee rights therein as have been taken.” The terminology of the statute which refers to a taking without just compensation is equivalent to the "de facto taking” test enunciated by the courts.
The general rule is that a governmental exercise of police power is unreasonable and constitutes "de facto taking” when it renders the property unsuitable for any reasonable income productiveness or other private use for which it is adapted and destroys the economic value of all but a bare residue *383(French Investing Co. v City of New York, 39 NY2d 587). When the restrictions upon the beneficial use and enjoyment of land are necessary to promote the ultimate good of the community and are within the bounds of reason, they will be sustained (Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, affd 438 US 104; Golden v Planning Bd. of Ramapo, 30 NY2d 359). Once it is demonstrated that the restriction on use of property serves some public purpose, the property owner, in order to sustain an attack on constitutional grounds, must establish that the resulting hardship is such as to deprive him of any use of the property to which it is reasonably adapted or destroys the greater part of its value. Once such a hardship has been established, a "de facto taking” will be determined to have occurred. The same test should be applied to the wetlands statute; that is, whether the regulation as applied to the petitioners has imposed so onerous a burden on property regulated that it has, in effect, deprived the owner of the reasonable income productive or other private use of his property and thus has destroyed its economic value. If that test is met, petitioner may then be entitled to compensation pursuant to the statute (ECL 24-0705, subd 7). This statute successfully meets the constitutional restrictions on land regulation measures because it provides recoupment to the owner when he is required to provide a benefit to the public in a situation where there is a taking without just compensation. On the record before us it cannot be said that petitioners have demonstrated that there was a taking without just compensation. Petitioners have failed to demonstrate that no productive use of their property can be made because of the denial of the present application. Their petition for a permit is uncompromising. They demand full and untrammelled use of their land. Had some expert testimony been presented and test borings been made, it would have been demonstrated to what extent, if any, they could use their land and still remain in conformity with the worthwhile purposes of the statute. The burden of such proof is on petitioners. No owner has an absolute right to change the essential natural character of his land and use it for a purpose unsuited to its natural state, thereby injuring the rights of others (Sibson v State, 115 NH 124).
Petition should be denied with leave to reapply for a rehearing in conformity with this opinion.
Kane, Staley, Jr., and Larkin, JJ., concur with Mahoney, *384P. J.; Mikoll, J., concurs in part and dissents in part in a separate opinion.
Determination vacated, with costs, and matter remitted to the commissioner for a decision, pursuant to ECL 24-0705 (subd [7]), whether to grant the permit requested or proceed under the Condemnation Law to acquire title and for further proceedings regarding the imposition of costs in accordance herewith.