Opposition Brief — 640 Broadway Renaissance Company v. Governor of the State of New York, Mayor of the City of New York; Chairman of the New York City Loft Board; Commissioner of the New York City Department of Buildings; . . . 500 U.S. 933 (1991) (No. 90-1522)

Pisa oon Oa

FILED

©) | APR 25 V991

No. 90-1522 ~—/“

IN THE GF THE CLERK

SUPREME COURT OF THE UNITED sTukee ©

OCTOBER TERM, 1990

640 BROADWAY RENAISSANCE COMPANY,

Debtor in Possession, Petitioner,

“—.%

MARIO CUOMO, as Governor of the State of

New York, et al.,

Respondents,

-and-

PHOEBE RENTSCHLER, et al.,

Defendants.

BRIEF OF MUNICIPAL RESPONDENTS IN

OPPOSITION TO A PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND

CIRCUIT

VICTOR A. KOVNER,

Corporation Counsel of the

City of New York,

Attorney for Municipal

Respondents,

100 Church Street,

New York, New York 10007.

(212) 788-1038 or 1068

LEONARD J. KOERNER, *

ELLEN B. FISHMAN,

TRUDI MARA SCHLEIFER,

of Counsel.

*Attorney of Record

April 25, 1991.

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

1. Was petitioner's challenge to the

constitutionality of Article 7-C of the New

York State Multiple Dwelling Law, §§ 280 et

seq. (the "Loft Law"), under the Due

Process and Equal Protection clauses of the

Fourteenth Amendment, the Taking Clause of

the Fifth and Fourteenth Amendments, and

the Contract Clause of Article I, Section 10,

properly dismissed on the ground that this

Court's decision in Spring Realty Co. v.

New York City Loft Board, 127 Misc.2d 1090,

487 NYS2d 973 (Sup. Ct. NY Co. 1985),

aff'd, 117 AD2d 1029, 498 NYS2d 241 (1st

Dep't), aff'd as modified on other grounds,

69 NY2d 657, 803 NE2d 1367, 511 NYS2d 830

(1986), appeal dismissed for want of a

substantial federal question, 482 US 911 ,

107 SCt 3179, 96 (LEd 2d 668 (1987),

decided those same issues against’ the

position taken by petitioner herein?

2. Was petitioner's challenge to the

legislation in issue on the ground that it

i

constituted a bill of attainder properly

dismissed as a matter of law since there was

no evidence of legislative intent to punish?

3. Was petitioner's challenge to the

legislation in issue on the ground that it

violated petitioner's "vested rights" properly

dismissed as a matter of law since a property

owner has no_- vested right to _ the

continuation of extant zoning law?

TABLE OF CONTENTS

COUNTER-STATEMENT OF

QUESTIONS PRESENTED...........

TABLE OF AUTHORITIES .......

STATEMENT OF THE CASE .......

REASONS FOR DENYING THE

WRIT OF CERTIORARI.............

eo ee) ee ee

Page

TABLE OF AUTHORITIES

Page

Cases:

Oriental Boulevard Co. v.

Heller, 88 Misc.2d 920,

297 NYS2d 431 (Sup. Ct. Kings

Co. 1969), modified on other

grounds and aff'd as modified,

34 AD2d 811, 311 NYS2d 635

(3rd Dep't), aff'd, 27 NY2d

212, 316 NYS2d 226, 265 NE2d

70 (1970), appeal dismissed

for want of a substantial

federal question, 401 US 986,

91 SCt. 1234, 28 LEd 2d 527 ..... 7

Selective Service System v.

Minnesota Public Interest

Research Group, 468 US 841,

104 SCt. 3348, 82 LEd 2d

Rb: ee a eee 6

Spring Realty Co. v. New York

City Loft Board, 127 Misc.2d

1090, 487 NYS2d 973 (Sup. Ct.

NY Co. 1985), aff'd 117 AD2d 1029,

498 NYS2d 241 (1st Dep't) aff'd

as modified on other grounds,

69 NY2d 657, 803 NE2d 1367, 511

NYS2d 830 (1986), appeal dismissed

for want of a substantial federal

question, 482 US 911, 107 SCt.

3179, 96 LEd 2d 668 (1987) ...... .. 2, 2

iv

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Statutes:

NY Multiple Dwelling Law

§280 et seq. va -

Other Authorities

U.S. Constitution

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IAI

No. 90-1522

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

640 BROADWAY RENAISSANCE COMPANY,

Debtor in Possession, Petitioner,

eV .=

MARIO CUOMO, as Governor of the State of

New York, et al.,

Respondents,

-and-

PHOEBE RENISCHLER, et al.,

Defendants.

BRIEF OF MUNICIPAL RESPONDENTS IN

OPPOSITION TO A PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND

CIRCUIT

STATEMENT OF THE CASE

The instant petition seeks review of a

Court of Appeals order, in the form of a

mandate, affirming the dismissal of

petitioner's complaint, which alleged various

challenges to the constitutionality of Article

7-C of the New York State Multiple Dwelling

Law, §§ 280 et seq. (McKinney Supp. 1990)

(the “Loft Law"). By a judgment of July

31, 1990, the District Court for the Southern

District of New York granted summary

judgment in favor of defendants Cuomo,

Koch, and members of the New York City

Loft Board. By order of January 2, 1991,

the United States Court of Appeals for the

Second Circuit unanimously affirmed the

judgment of the District Court, on the

ground that the majority of the claims were

barred under the ruling of Spring Realty

Co. v. New York City Loft Board, 127

Misc.2d 1090, 487 NYS2d 973 (Sup. Ct. NY

Co. 1985), aff'd, 117 AD2d 1029, 498 NYS2d

241 (list Dep't), aff'd as modified on other

grounds, 69 NY2d 657, 503 NE2d 1367, 511

NYS2d 830 (1986), appeal dismissed for want

of a substantial federal question, 482 US

911, 107 SCt. 3179, 96 LEd 2d 668 (1987)

("Spring Realty"); and the remaining claims

2

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(bill of attainder and "vested rights") were

without merit as a matter of law.

REASONS FOR DENYING THE WRIT

As expressed by the Court of Appeals,

petitioner herein "presents a host of

challenges to the constitutionality of Article

7-C of the New York State Multiple Dwelling

Law, §§ 280 et seq." (the "Loft Law").

When petitioner's property at 640 Broadway

in the City of New York was designated as

covered by certain provisions of the Loft

Law, petitioner brought’ suit seeking

declaratory and injunctive relief invalidating

the Loft Law and an award of three million

dollars in damages from the government

defendants.

In response to this challenge, the

government defendants sought dismissal of

the complaint on the ground that the

majority of the claims had been disposed of

by this Court in Spring Realty Co. v. New

York City Loft Board, 127 Misc.2d 1090, 487

3

NYS2d 973 (Sup. Ct. NY Co. 1985), aff'd,

117 AD2d 1029, 498 NYS2d 241 (1st Dep't),

aff'd as modified on other grounds, 69 NY2d

657, 503 NE2d 1367, 511 NYS2d 830 (1986),

appeal dismissed for want of a_ substantial

federal question, 482 US 911, 107 SCt 3179,

96 LEd 2d 668 (1987).

The District Court for the Southern

District of New York agreed that the

majority of petitioner's claims had _ been

decided against petitioner's position, in

Spring Realty. The Court of Appeals

agreed, holding that

The Supreme Court's dismissal

of a prior “challenge to the Loft

Law in Spring Realty Co. v. New

York City Loft Board, 127 Misc.2d

1090, 487 N.Y.S.2d 973 (Sup. Ct.

N.Y. Co. 1985), aff'd, 117 A.D.2d

1029, 498 N.Y.S.2d 241 (lst

Dep't); aff'd as modified on other

grounds, 69 N.Y.2d 657, 503

N.E.2d 1367, 511 N.Y.S.2d 830

(1986), appeal dismissed for want

of a substantial federal question,

482 U.S. 911 (1987), bars the

majority of [640] Broadway's

constitutional claims. Once the

Supreme Court has dismissed an

appeal for want of a_ substantial

federal question, we are bound to

4

: »

treat that decision as rejecting on

the merits those issues presented

in the jurisdictional statement and

necessarily decided. See Mandel

v. Bradley, 432 U.S. 173 (1977)

(per curiam); League of Women

Voters v. Nassau County Board of

Supervisors, 737 F.2d 155 (2d Cir.

1984), cert. denied sub _ nom.

Schmertz v. Nassau County Board

of Supervisors, 469 U.S. 1108

(1985). Spring Realty precludes

reconsideration of [640}

Broadway's claims under the Due

Process and Equal Protection

clauses of the Fourteenth

Amendment, the Takings Clause of

the Fifth and Fourteenth

amendments, and the Contract

Clause of Article I, Section 10.

Petition for Certiorari, Al-A3.

Furthermore, the Court of Appeals

held, the claims of the plaintiffs in Spring

Realty were indeed ripe, rejecting

petitioner's reading of that case. This

Court's dismissal of the appeal in Spring

Realty for want of a _ substantial federal

question was, therefore, made on the merits.

The claims presented by petitioner herein,

on essentially the same grounds as_ were

presented in Spring’ Realty, that is,

challenges to the validity of the Loft Law on

)

a variety of constitutional grounds, were

therefore properly dismissed as having been

decided and rejected by this Court.

Only two issues raised by petitioner

herein had not been considered by the

courts in Spring Realty: that the Loft Law

constituted a bill of attainder in violation of

Article I, Section 10, and that the Loft Law

impairs petitioner's "vested property right"

in the commercial certificate of occupancy

issued to the property before the enactment

of the regulations in issue. As was held by

the District Court, and affirmed by the

Court of Appeals, those claims are without

merit as a matter of law since, respectively,

there is no evidence of legislative intent to

punish (see Selective Service System v.

Minnesota Public Interest Research Group,

468 US 841, 852, n.8, 104 S Ct 3348, 82 LEd

2d 632 (1984); nor does a property owner

acquire a vested right to the status quo

where, by the exercise of police power, the

6

State imposes additional or new requirements

with respect to the use of such property

(see Oriental Boulevard Co. v. Heller, 88

Misc.2d 920, 928-929, 297 NYS2d 431, 441

(Sup. Ct. Kings Co. 1969), modified on

other grounds and aff'd as_ medified, 34

AD2d 811, 311 NYS2d 635 (2d Dep't), aff'd,

27 NY2d 212, 316 NYS2d 226, 265 NE2d 72

(1970), appeal dismissed for want of a

substantial federal question, 401 US 986, 91

S Ct 1234, 28 LEd 2d 527 (1971)).

The District Court, as affirmed by the

Court of Appeals, correctly determined that

petitioner's due process, equal protection,

Contract Clause, and takings claims were

previously presented to and adjudicated by

both the New York State courts and this

Court and further that there were neither

significant factual distinctions between the

plaintiff in Spring Realty and petitioner

herein, nor had there been any doctrinal

developments undermining Spring _ Realty.

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The courts below also correctly determined

that the bill of attainder and “vested rights"

arguments were without merit as a matter of

law. The Courts below therefore correctly

determined that the entire complaint should

be dismissed.

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED.

April 25, 1991.

VICTOR A. KOVNER,

Corporation Counsel for the

City of New York,

Attorney for Municipal

Respondents Koch, Dole,

Cooke, Delaney, Liebman,

Navaretta, Nemaier,

Martinez, Smith, and

Deutsch

LEONARD J. KOERNER,*

ELLEN B. FISHMAN,

TRUDI MARA SCHLEIFER,

of Counsel.

*Attorney of Record