(dissenting):
I respectfully dissent. The federal courts should not permit § 1983 to be used as a means to obtain undeserved payment from public funds. In this action, Kohl never had a valid claim; the complaint alleges an uncompensated “taking”, but presents no facts which would allow a court to find a fifth amendment violation. Moreover, the relief Kohl seeks, an order compelling the condemnation of a fee simple interest, is not a remedy any court could provide to Kohl. As discussed below, this action should be remanded to the district court for the purpose of entertaining a motion to dismiss for failure to state a cause of action.
Despite Kohl’s allegations of extensive activity by Rockland, no formal steps toward condemnation were ever taken. Most importantly, none of the actions taken by Rockland, nor the totality of its conduct, amounts to a de facto taking of the Kohl property. Ordinarily, a taking does not result before formal condemnation proceedings are commenced. As courts have repeatedly acknowledged public projects often go through many formative steps and alterations, and may even be abandoned, before condemnation proceedings are necessary. The state simply does not incur liability for a taking each time it speculates as to whether a particular property owner’s land might be made subject to eminent domain.
In Danforth v. United States, 308 U.S. 271, 285, 60 S.Ct. 231, 236, 84 L.Ed. 240 (1939), for example, the Supreme Court acknowledged that “[a] reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are the ‘incidents’ of ownership. They cannot be considered as a ‘taking’ in the constitutional sense.” More recently, in Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), the Court primarily considered and rejected allegations that certain zoning ordinances rose to the level of a taking. Addressing additional contentions that an “aborted attempt to acquire the land through eminent domain had destroyed the use of the land during the pendency of the proceedings,” id. at 259 n. 3, 100 S.Ct. at 2140 n. 3 the Court found:
“The State Supreme Court correctly rejected the contention that the municipality’s good-faith planning activities, which did not result in successful prosecution of an eminent domain claim, so burdened the appellants’ enjoyment of their property as to constitute a taking.. .. Even if the appellants’ ability to sell their property was limited during the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decision-making, absent extraordinary delay, are ‘incidents of ownership.’ ” Id. at 263 n. 9, 100 S.Ct. at 2143 n. 9 (citation omitted; quoting Danforth, supra).
The Danforth and Agins decisions both concerned condemnation proceedings which had been commenced and abandoned. More specific to the Kohl action, the highly regarded, well-reasoned New York Court of Appeals decision in City of Buffalo v. J. W. Clement Company, 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895 (1971), held that when no formal condemnation proceedings have begun, no taking can ever result.1
*905J.W. Clement Company (“Clement”), the owner of the property condemned in City of Buffalo, had purchased it in 1946, had made extensive improvements, and for years had operated a worldwide printing company from that location. In late 1954, the City of Buffalo began investigating an urban renewal project, and by 1957, Clement was formally notified that its property would be taken sometime between 1960 and 1962. In 1960, public officials stated that Clement’s property must be vacated within three or four years; in 1961, the proposed time for condemnation was set at between eighteen and twenty-four months; in the summer of 1962, the mayor of Buffalo stated that condemnation would occur in the spring of 1963; early in 1963, written notification to Clement proposed public acquisition in May 1963. Because its business utilized massive machinery, Clement began relocating in 1961, and had fully moved its operations by April 1963. At that time, the court observed, the property was “both unsaleable and unrentable, ... and all efforts to procure even a short-term tenant proved unsuccessful. Clement, however, as owner in fee, continued to pay taxes and insurance and to maintain the property at its own expense while urging the city to complete the condemnation.” Id. at 249, 321 N.Y.S.2d at 352, 269 N.E.2d at 900. Formal condemnation did not occur until 1968.
Rejecting Clement’s argument that a de facto taking actually occurred in April 1963, the Court of Appeals held that the threat of condemnation could never constitute a taking. The court distinguished a de facto taking, which it found to involve “a physical entry by the condemnor, a physical ouster of the owner, a legal interference with the physical use, possession or enjoyment of the property or a legal interference with the owner’s power of disposition of the property.” Id. at 255, 321 N.Y.S.2d at 357, 269 N.E.2d at 903. The court also clarified the legal impact of “condemnation blight,” which allows an owner whose property is condemned to recover compensation “based on the value of the property at the time of the taking, as if it had not been subjected to the debilitating effect of a threatened condemnation.” Id.; 321 N.Y.S.2d at 357, 269 N.E.2d at 903 (emphasis supplied).
The court found meritless assertions that a de facto taking could result from extensive municipal planning, and refused to award damages based on losses incurred at any time during the planning period. The court reasoned:
“We simply have a manifestation of an intent to condemn and such, even considering the protracted delay attending final appropriation, cannot cast the municipality in liability upon a theory of a ‘taking’ for there was no appropriation of the property in its accepted legal sense....
“Moreover, strong policy considerations prohibit a finding of a de facto taking in the instant case. To hold the date of the announcement of the impending condemnation, whether directly to the con-*906demnee or by the news media, constitutes a de facto taking at that time, would be to impose an ‘oppressive’ and ‘unwarranted’ burden upon the condemning authority. At the very least, it would serve to penalize the condemnor for providing appropriate advance notice to a property owner. And to so impede the actions of the municipality in preparing and publicizing plans for the good of the community, would be to encourage a converse policy of secrecy which ‘would but raise [greater] havoc with an owner’s rights.’ ” Id. at 255-56, 321 N.Y.S.2d at 357-58, 269 N.E.2d at 903-04 (emphasis in original; citations omitted).
Not only is Kohl’s action controlled by City of Buffalo, but Kohl presents a far less compelling allegation of hardship than that case. The record here is devoid of any indication of Kohl’s ability or desire at any time to develop this land; apparently, Kohl never sought to improve, rent, or sell the property, and in fact purchased it well after Rockland’s flood control plans were being investigated. The complaint reveals that Kohl failed to pay property taxes for some time in 1977 and 1978, and that Rockland had already obtained all of the Kohl property through a tax sale, subject to Kohl’s right to redemption within three years. The settlement agreement presently at issue itself reveals that Kohl’s imminent loss of the property, resulting from its own inability to pay its taxes, precipitated this lawsuit: Kohl’s two concerns were that Rock-land would obtain title through condemnation before the end of the redemption period, and that Kohl would be absolved of liability for unpaid taxes.
Certainly nothing in the Constitution protects Kohl from the burden of paying taxes. Furthermore, whatever Kohl’s plans when it purchased this property, Rockland cannot be made liable simply because Kohl mis-predicted the timing of the condemnation: “The just compensation clause ... [is] certainly not intended to relieve real estate developers of the burdens of business decisions that do not turn out to be correct.” Thompson, supra n. 1, 496 F.Supp. at 543.
Kohl’s claim was dismissed initially, however, not because it was meritless, but because the parties settled. To enforce that settlement, however, the district court would be required to order Rockland to condemn more of Kohl's property than the county legislature has found to be necessary for the public use. See Hallock v. State, 32 N.Y.2d 599, 605, 347 N.Y.S.2d 60, 64, 300 N.E.2d 430, 432 (1975) (“In general there may not be the acquisition of a fee when only an easement is required.”); e.g., Kupersmidt v. New York Telephone Co., 54 Misc.2d 332, 336, 282 N.Y.S.2d 605, 609 (Sup.Ct., Suffolk County, 1967) (condemnation of road bed resulted in acquisition of permanent easement; private owner retained fee title).
The timing of condemnation, and the extent and nature of the estate to be condemned, are decisions which can be made only by a legislature. E.g., In re Board of Water Supply of the City of New York, 277 N.Y. 452, 455, 14 N.E.2d 789, 790 (1938); Cinco v. City of New York, 58 Misc.2d 828, 296 N.Y.S.2d 26, 30 (Sup.Ct., Queens County, 1968). The Rockland County legislature has authorized condemnation of a permanent easement over approximately thirty acres of Kohl’s sixty-acre estate, and the state court has already condemned that interest.
Kohl now asks that a federal court supplant that legislative decision and state court action with its own order. No court could force Rockland to exercise its powers of eminent domain when it has expressly chosen not to do so. Absent a de facto taking by state action, no court could condemn an interest in property without legislative authorization. However commendable the district court’s efforts to settle this action, the settlement agreement simply cannot be enforced.
Moreover, Kohl’s insistence on the condemnation of a fee interest rather than a permanent easement seeks a windfall at Rockland’s expense. The parties agree that a permanent easement and a fee simple would be valued so as to result in the same compensation, and Rockland has agreed to assume the tax obligations, if any, Kohl may incur by remaining the technical owner *907of the estate. At issue is the impact of the condemnation on the thirty acres of Kohl’s estate not taken by Rockland.
By retaining a fee interest in the condemned thirty acres, Kohl would be entitled to develop its remaining thirty acres according to a density allowance based upon the entire sixty acres. If Rockland instead condemned a fee interest, the density allowance would be reduced accordingly, and Kohl would be entitled to consequential damages. Because the thirty acres retained by Kohl do not appear conducive to this developmental opportunity, Kohl is attempting to manufacture the increased consequential damages.
Kohl has already received more through its settlement of this meritless action than it ever was entitled to by law. To assist Kohl in its efforts to obtain increased and undeserved consequential damages through a highly questionable exercise of judicial authority would be to encourage similar actions brought in an abuse of § 1983 jurisdiction. I cannot condone such a result, and I am compelled to dissent.
. Accord, e.g., Chacon v. Granata, 515 F.2d 922, 925 (5th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 279, 46 L.Ed.2d 258 (1975); Sayre v. City of Cleveland, 493 F.2d 64, 70 (6th Cir.), cert. denied, 419 U.S. 837, 95 S.Ct. 65, 42 L.Ed.2d 64 (1974); Thompson v. Tualatin Hills Park & Recreation District, 496 F.Supp. 530, 539-45 (D.Ore.1980); United States v. 3.66 *905Acres of Land, More or Less, situated in the City and County of San Francisco, State of California, 426 F.Supp. 533, 535 (N.D.Calif.1977); Hempstead General Hospital v. Whalen, 474 F.Supp. 398, 409-11 (E.D.N.Y.1979), aff’d mem., 622 F.2d 573 (2d Cir.1980); Niagara Frontier Building Corp. v. State, 28 N.Y.2d 755, 756, 321 N.Y.S.2d 368, 368-69, 269 N.E.2d 912, 912 (1971); Latham Enterprises, Inc. v. State, 12 N.Y.2d 707, 233 N.Y.S. 762, 186 N.E.2d 120 (1962); Mickel v. State, 77 A.D.2d 794, 794-95, 430 N.Y.S.2d 741, 742 (4th Dep’t 1980), aff’d, 54 N.Y.2d 858, 444 N.Y.S.2d 916, 429 N.E.2d 423 (1981); In Re Block Bounded by Smith Street, 5th Street, Hoyt Street, 4th Street, Bond Street, Gowanus Canal and 7th Street, in the Borough of Brooklyn, City of New York, 75 A.D.2d 605, 426 N.Y.S.2d 1019 (2d Dep’t 1980); New York Telephone Co. v. State, 67 A.D.2d 745, 746, 412 N.Y.S.2d 223, 224 (3d Dep’t 1979); Fisher v. City of Syracuse, 46 A.D.2d 216, 217, 361 N.Y.S.2d 773, 775-76 (4th Dep’t 1974), appeal denied, 36 N.Y.2d 642, 368 N.Y. S.2d 1025, cert. denied, 423 U.S. 833, 96 S.Ct. 57, 46 L.Ed.2d 51 (1975); In re Incorporated Village of Lynbrook, 75 Misc.2d 678, 679-82, 348 N.Y.S.2d 115, 117-19 (Sup.Ct., Nassau County, 1973); Beaux Arts Properties, Inc. v. United Nations Development Corp., 68 Misc.2d 785, 790-93, 328 N.Y.S.2d 16, 22-24 (Sup.Ct., New York County), aff’d, 39 A.D.2d 844, 332 N.Y.S.2d 1008 (1st Dep’t 1972); see Indiana Hospital Association v. Schweiker, 544 F.Supp. 1167, 1184-85 (S.D.Ind.1982); Kohlasch v. New York State Thruway Authority, 482 F.Supp. 721, 724 (S.D.N.Y.1980).