Appellees Brief — Crane Neck Ass'n v. NYC/Long Island County Services Group

No. 83-2157" 2)

Jn the Supreme Court of the Cnftew Brats US.

OCTOBER TERM, 1983 AUG 24 1904

CRANE NECK ASSOCIATION, INC.; ARTHUR L. yen STEN |

CATHERINE CHILDS; EVERSLEY CHILDS ODGEN, MAR

A. FIDAO; CHARLES H. COPELAND; ARTH and

RUTH WEEKS; KEVIN HANLON and JO ANN HANLON; MARION

HOMIRE; HIROSHI TAKAHASHI and YOSHIKO TAKAHASHI,

PHILIP ERHORN; LAWRENCE FORSDICK and NANCY FORSDICK;

CHARLES A. FORSDICK; ARTHUR BELDER; ARTHUR R. FORSDICK;

RENATTE HAKIM-ELAHI; ROBERT GORDON and IDA GORDON;

H. WILLARD GRAY and BARBARA GRAY; HARVEY KRAMER;

CHARLES WURSTER and EVA WURSTER; SHERRI ANN TISCH;

H. TREBLING BURNARD and MARGARET BURNARD; ARTHUR

AUFSES and HARRIET AUFSES; JANE PERKINS; WILLIAM

MILHAVEN and BARBARA MILHAVEN: DOROTHY GRAF;

JAMES HURLEY and HELENE HURLEY; BRUCE SULLIVAN and

MARGARET SULLIVAN; ANNA L. HARTZELL; MAXIME C. FIDAO;

WALTER EICHACKER and JANET EICHACKER; YANG S. LU

and GRACE LU,

Appellants,

-against-

NYC/LONG ISLAND COUNTY SERVICES GROUP and JONATHAN

POOL and BERNARD GROFMAN, and NEW YORK STATE

DEPARTMENT OF MENTAL RETARDATION AND

DEVELOPMENTAL DISABILITIES,

Appellees.

On Appeal from the New York Court of Appeals

MOTION OF APPELLEES JONATHAN POOL AND

BERNARD GROFMAN TO DISMISS APPEAL OR AFFIRM

JUDGMENT ON APPEAL

EST AVAILABLE COPY J LEWIS A. GOLINKER

—_ , (Counsel of Record)

Herbert Semmel

Counsel for Appellees

Of Counsel: Pool and Grofman

Lonnie Davis New York Lawyers for the

Disability Law Project Public Interest, Inc.

949 Market Street 36 West 44th Street

Tacoma, Washington 98402 New York, New York 10036

(206) 383-1848 (212) 575-5138

PRINTINGHOUSE PRESS—(212) 719-3120 (9 %

TABLE OF CONTENTS

TABLE OF AUTHORITIES... ...cccccccoecs II!

FACTS eeee#see#*es#se*e#e#e#2e?#ee?#e#8e# eeoeeee*ee#*e2see3e8ee#2e28e#208 8 @ l

ARGUMENT eeeeeess#s#ess#dete#ses##ensteneenwnee#enseee7#ee#se#e?#e# 6

I. THIS COURT LACKS JURISDIC-

TION EITHER ON APPEAL OR

CERTIORARI, BECAUSE NO FINAL

JUDGMENT HAS BEEN RENDERED

BY THE NEW YORK COURTS......-... 6

A. There Are Additional Is-

sues Awaiting Adjudication. 7

B. This Case Does Not Fall

Into The Special Circum-

stances Where This Court

Has Reviewed State Court

Decisions Lacking Complete

PAMELA S vce ccicasscvesccccse 14

II. THE DECISION BELOW RESTED ON

GROUNDS OF PUBLIC POLICY AND

NOT NECESSARILY ON ANY NEW

YORK STATUTE. ACCORDINGLY,

(1) THE DECISION INVOLVED NO

"LEGISLATIVE IMPAIRMENT" AND

DID NOT REQUIRE A DETERMIN-

ATION ON APPELLANTS' CONTRACT CLAUSE

CLAIM; (2) THERE IS NO JURIS-

DICTION HERE ON APPEAL AS THE

DECISION BELOW DID NOT NECES-

SARILY DRAW INTO QUESTION THE

VALIDITY OF A STATUTE OF THE

STATE. cccccccccccccccccccccccscse 24

III. THERE IS NO SUBSTANTIAL FED-

ERAL QUESTION PRESENTED BY

THIS APPEAL... ccccccccccccces 30

II

A. There Has Been No Sub-

stantial Impairment of

Appellants’ Contractual

RIGNRD s so 00 cnet vdecesenr an )

B. The State Courts' Re-

fusal To Enforce The

Restrictive Covenant

To Prohibit Even A

Single Community Resi-

dence for the Develop-

mentally Disabled Gives

Effect To Important

State and Federal Pol-

icies for Deinstitut-

ionalization in a

Manner that is Both

Reasonable and Neces-

sary To Achieve Those

Policy Goals........... 4]

CONCLUSION. ..cccccccsses coccccecccee 55

III

TABLE OF AUTHORITIES

CASES

Adams Cty. Ass'n. For Retarded

Citizens v. City of

Westminster, T5e Ges. 79;

580 P.2d 1246 (Sup. Ct. 1978) .. 53

Barrows v. Jackson, 346 U.S.

DEPP PREC Cheah eeeedecwoteccces 28

Cox Broadcasting Corp v. Cohn,

420 U.S. 469 LIS 755 beeen 14,15,

16,17,

18,19,

20,21,

Crane Neck Association, Inc. 22,23

NYC/Long County Services

Group, 92 KDoaa II9, 460

Betseee OF FOG Dept. 1963) ...20- 3

Crane Neck Association, Inc.

v. NyC/Long Island Count

Services Group, 61 N.Y. ba

154, 472 WAYS. 2d 901, 460

ee ee RA OUED cccccccceces 3

Energy Reserves Group, Inc. v.

Kansas Power & Light Co., 459

PMP GROONE Seco sescecccccecs 31,33,

42,48

Exxon Corp. v. Eagerton, 103 S.

Cee (1983) 2 4 6.66 6.6.6 © 6 35,47

48

Grasmere Homeowners' Ass'n v.

Introne, 84 A.D. 2d 778, 443

N.Y.S. 2d 956 (2d Dept. 1981).. 38,40

IV

Home Bldg. & Loan Ass'n v.

Blaisdell, 290 U.S. 398

Hudson Co. v. McCarter, 209 U.S.

ee SEPP? sade eves cate edecdun.s 35

Incorporated Village of Old Field

v. Introne, 104 Misc. 2d 122,

430 N.Y.S. 2d 192 (Sup. Ct.

SeESGIR GOs ESOS) wc cedcees 48,50

Incorporated Village of Old

Field v. Introne, 81 A.D. 2d |

$06, 441 N.Y.S. 2d 418 (2a Dept.

gE REEPREL LEAR ETE eT eee 39 |

Kew Gardens Corp. v. Ciro's Plaza

Inc., 261 A.D. 2d 5/6, 26

N.Y.S. 2d 553 (2d Dept. 1941)... 36

Lincoln Trust Co. v. Williams

~ Bldg Corp., 229 N.Y. 313,

See en De COROR) icwdccacecs 33

Matter of Browe v. Champagne,

97 Misc. 2d 1058, 413 N.Y.S.

2d 103 (Sup. Ct. Renesselear

Gu: Seven eeu behecetosebebansess 38

McClure v. Leaycraft, 183 N.Y.

36, /5 N.E. SET ND a oy ise 36

Michigan v. Lon aga 8. Ge.

EGS T1963)... ... c. eccee 24,25

Mills v. Alabama, 384 U.S. 214

PE SEUGR Ee Cats end eekews 17,18

Minnick v. Calif. Dept. of

Correction, 452 U.S. 105 |

SEER Se eeanenseceeesssvces 18,20

National Sociaiist Party of

erica v. Village of okie,

432 U.S. 43 ) (Per

North Dakota Board of Pharmacy

v. Snyder's Drug Stores, 414

U.S. tse C2975) ccccscvrccsecccces

Orange & Rockland Util v. Phil-

wold Estates, iInc., 52 N.Y.

N.¥.S. 2d 291,

418 N. E. 2d 1310 (1981) .........

Radio Station, WOW, Inc. v.

Johnson, 326 U.S. 120 (1945) ....

San Diego Gas & Elec. Co v. San

~ Diego, 450 U.S. 621 (1980) ......

Town of Greenburgh v. Coughlin,

73 A.D. 2d 672, 423 N.Y.S. 2d

209 (2d Dept. 1979) Mot. for

lv. to app. den. 49 N.Y. 2d

704, 427 N.Y.S. 2d 1025 (1980)...

Town of Hempstead v. Com'r,

State of N.Y., 78 A.D. 2d

677, 432 N.Y.S. 2d 399 (2d

Dept. L9GO) noc vcccccesevecsocces

Town of Hempstead v. Commissioner,

89 A.D. oS 850, 453 N.Y.S. 2d

32 (28 Dept. 1962) sewcscvccececs

Trustees of Columbia Coll. v.

Thacher, 87 N.Y. 311 (1882) .....

United States Trust Co. v.

New Jersey, 431 U.S. 1 (1977) .

40

32,46,

48

a |

Veix v. Sixth Ward Bldg & Loan

Ass'n, 310 U.S. 32 T1340} oeeene 32

Village of Euclid v. Ambler

~ Realty Co., 272 U.S. 365 (1926).. 33

Welsch v. Goswick, 130 Cal. App. :

3d 398, I8I Cal Rptr. 703

CEES 06% 444% bh bas Keehakimhed's 4 a6 52

Youngberg v. Romeo, 644 F. 2d

Th, er Cir. I980) (en banc)..... 46

Youngberg v. Romeo, 457 U.S.

304 T1382) 00060806 me he jee eee ees 46

Zubli v. Community Mainstream-

ing Associates, 102 Misc. 2d

336; 423 N.Y.S. 2d 982 (Sup.

Ct. Nassau Co. 1979); aff'd

on opinion below, 74 A.D. 2d

624, 425 N.Y.S. 2d 263 (2a

Dept.), aff'd as modified, 50

N.Y. 2d 1024, F3I N.Y.S. 2a

813, 410 N.E. 2d 746 (1980) ..... 47

eb ee Lei Tairte ee «desea —

STATUTES

Constitutional Provisions and |

Federal Statutes i

Art. I, Section 10, cl. l,

United States Constitution ..... 6,8 |

Fifth Amendment, United States

SE GE a.d'0 bee Dae beh ok OX a

Fourteenth Amendment, United

States Cometitution .....ciscsces 9

|

ff > 2 eS: : eee reat @

14,24

VII

New York Statutes

Section 5524, New York Civil

PEEGEIOO Tew 6 PALES ceocecccsccses 7

Section 5701, New York Civil

Practice Law & RuleS ......ccceee ll

Section 4401, et seq., New York

Education Law “Oat 2 ae eee

Section 16-0101, et seq., New

York Environmental Conserva-

Se Se Ces akab be ee eh eb ee seovces 34

Section 20 et seq., New York

General City Law ........eeeeeeee 34

Section 96-a, New York General

MamiGinnl LAW .ccceveccccsvescees 34

Section 41.34 , New York Mental >

Hygiene Law ......... ketenes cass SUPRSE

Section 41.34(b), New York

Mental Hygiene Law ....... eee se 49

Section 41.34(c), New York

Mental Hygiene Law .............. 37,49

Section 41.34(c)(2), New York

Mental Hygiene Law ..........2.26- 37

Section 41.34(c)(4), New York

Mental Hygiene Law .............- 38

Section 41.34(c)(5), New York

Mental Hygiene Law ........ 38,39,

50

Section 41.34(d), New York

Mental Hygiene Law .............- 38,49

VIII

Section 41.34(f£), New York

Mental Hygiene Law ...... si tii gh

Section 14.01, et seq.,

New York Parks & Recreation

Law e*eeee@ee#*ee#ee#ee#8e#eee*ee@ee#e#ee#e#e#ee#ee#e#e#e##e#e#e#e#

Section 1951, New York Real

Property Actions & Proceed-

ADDGR TW occccccccccesvccsccscocece

Section 261, et seq., New York

>. ° Eve rerrere es ees eee 4

Section 6251, New York Uncon-

SR ee a Ci wd saa abaeesese

Section 7¢°700, et seq., New

WOER VESSN CE Scie ccbecccoce

1901 New York Laws, Ch. 466.......

D Leccccccrcvccccccdeccccecevecs

1983 New York Laws, Ch. 570 ......

Other States' Statutes

Ariz. Rev. Stat. Ann.

§ 36-582 (Supp. 1983-84) .......

Cal. Health & Safety Code

§ 1566.5 (West Supp. 1984) .....

Cal. Welf. & Inst. Code (West

Sta @ Bape. SIGS) codeteccvcece

34

13,36

52

52

IX

Colo. Rev. Stat. §§ 31-23-

301 (4), 31-23-303 (2)

4 8b Se SR 2 Ee ae ae Ge

Hawaii Rev. Stat. § 333E-3.5

SE SOUS) coccesvesgecesesees

Ind. Code Ann. § 16-13-21-14

Coe, Ge, ZEST) cc ccvcvcsecs

Me. Rev. Stat. Ann. tit. 30,

§ 4962-A (Supp. 1983-84) .......

Md. Health-Gen. Code Ann.

§ 7-102 (1982 & Supp. 1983) ....

Mich. Comp. Laws Ann. § 125.21l6a

(West Supp. 1984-85) ...........

Minn. Stat. Ann. §§ 245.812(3)

(1982), 462.357(7) (Supp.

5k eee eae and Pah ee

Mont. Code Ann. §§ 53-20-301

CAO 6 ee ek ee ee EE ews O88

Neb. Rev. Stat. § 18-1745 (1983)

Nev. Rev. Stat. § 278.201 (1983)

N.J. Stat. Ann. § 40.55D-66.1

(Meet TORR H io cee b e646 w ews 6 ec

N.C. Gen. Stat. §§ 168-20, 168-

pe oe ls ee

Ohio Rev. Code Ann. § 5123.19

(D) (Page 1981 & Supp. 1983) ...

R.I. Gen. Laws §§ 45-24-22, 45-

24-23 (1980 & Supp. 1983) ......

S.C. Code Ann. § 44-21-20 (Law

COmOM L976) cccccveccccccevesecss

Tenn. Code Ann. § 13-24-102

(LaGGe? 40445 eee eee ee ee i ane

Ve. Stat. Anm. tit .26,

§ 4409 (1979 & Supp. 1983-

De? “cwweenseseences Catan ae bese oe

Va. Code § 15.1-486.2 (1981) .....

wis. Stat. Ann. § 62-23 (i) (3)

(West Supp. 1983 - 84) .........

Other Authorities

Janicki, Mayeda & Epple,

"Availability of Group

Homes for Persons with Mental

Retardation in the United

States," 21 Mental Retarda-

ee ae Lee ederveWewas 60eese-

New York State Office of

Mental Retardation And

Developmental Disabilities,

New York State Plan: Mental

Retardation and Developmental

Disabilities 1984-1987

es ee eS eee

New York State Senate Mental

Hygiene and Addiction

Control Committee, "Site Se-

lection of Community Residences

for the Mentally Disabled:

Historical Perspective and

Legislation" [April 1979] .....

46

43,44,

45

49,52,

53,54

XI

Note, "The Finality Rule for

Supreme Court Review of State

Court Orders," 91 Harv. L.

Rev. 1004 (1978) ...--++-e---+e- 19,20

No. 83-2157

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

CRANE NECK ASSOCIATION, et al.,

Appellants,

-against-

NYC/LONG ISLAND COUNTY SERVICES GROUP

and JONATHAN POOL and BERNARD GROFMAN,

and NEW YORK STATE DEPARTMENT OF MENTAL

RETARDATION AND DEVELOPMENTAL DISABILI-

TIES,

Appellees.

On Appeal from the New York

Court of Appeals

MOTION OF APPELLEES JONATHAN POOL AND

BERNARD GROFMAN TO DISMISS APPEAL OR

AFFIRM JUDGMENT ON APPEAL

Appellees Jonathan Pool and

Bernard Grofman move this Court to

dismiss Appellants' appeal. In the

alternative, appellees Pool and Grofman

move this Court to affirm the judgment

rendered February 23, 1984 by the New

York Court of Appeals, on which this

appeal rests. The basis for this motion

is that there has been no final judgment

rendered by the New York Court of

Appeals; therefore, the necessary

predicate for jurisdiction by appeal or

certtorari under 28 U.S.C. § 1257 is

lacking. This Court also lacks jurisdic-

tion because the judgment of the New York

Court of Appeals rests on adequate and

independent state common law grounds. In

the alternative, this Court should affirm

the judgment sought to be reviewed

because the determination of the federal

question by the New York Court of Appeals

was correct.

The opinion of the New York

Court of Appeals is reported at 61 N.Y.

2d 154, 460 N.E. 2d 1336, 472 N.Y.S. 2d

901 (1984) and is reprinted in the

Jurisdictional Statement at 26a-4la. The

opinion of the New York Supreme Court,

Appellate Division, Second Department is

reported at 92 AD 2d 119, 460 N.Y.S. 2d

69 (2d Dept. 1983) and is reprinted in

the Jurisdictional Statement at lla-25a.

The unreported decision of the New York

Supreme Court, Suffolk County, is

reprinted in the Jurisdictional Statement

at la-10a.

The motions filed by the other

two appellees, the NYC/Long Island County

Services Group and the New York State

Office of Mental Retardation and Develop-

mental Disabilities, have fully set forth

the facts relevant to this appeal and

they need not be restated in detail here.

FACTS

In brief, appellants are landowners

in Crane Neck, New York who sued for an

injunction and damages for violation by

appellees Pool and Grofman of a restric-

tive covenant in their deed limiting use.

to single family dwellings. Pool and

Grofman had leased their house in Crane

Neck to an agency of New York State to be

used as a community residence for eight

profoundly retarded adults. Under MHL

§41.34, the state agency chose the site

after local government officials were

notified and their views considered. The

local government sought and obtained a

due process hearing after which the

Commissioner of the New York State Office

of Mental Retardation and Developmental

Disabilities upheld the site selection,

finding that the community residence

would not substantially alter the nature

and character of the area, which is the

standard set forth in § 41.34 (c)(5).

The state court affirmed the decision of

the Commissioner. Incorporated Village of

Old Field v. Introne, 81 A.D. 2d 906, 441

N.Y.S. 2d 418 (2d Dept. 1981).

Appellants also sued, and the trial

court granted them partial summary

judgment by issuing a declaration that

the covenant had been violated. However,

the trial court declined to issue an

injunction because other issues remained

to be decided. On further appeal, the

Appellate Division reversed, holding that

a community residence would not be

inconsistent with the terms of the

covenant, and that state public policy

would otherwise prohibit its specific

enforcement. The New York Court of

Appeals affirmed, holding that the

community residence was not a use

contemplated by the covenant, but that

specific performance of the restrictive

covenants should not be awarded because

the covenant violated state public policy

in favor of deinstitutionalization of the

mentally retarded. The Court of Appeals

opinion also stated that the Contract

Clause of the United States Constitution,

art. I, sec. 10, cl. 1, had not been

violated by the denial of the injunction.

ARGUMENT

POINT I

THIS COURT LACKS JURISDICTION, EITHER ON

APPEAL OR CERTIORARI, BECAUSE NO FINAL

JUDGMENT HAS BEEN RENDERED BY THE NEW

YORK COURTS

Absent a final judgment by the

New York courts, this Court has no

jurisdiction, by appeal or certiorari.

28 U.S.C. § 1257. The New York courts

have merely held that appellants are not

entitled to injunctive relief to enforce

the restrictive covenants against

appellees; they have not fully adjudicated

appellants' claims for relief. An order

by the New York Court of Appeals pursuant

to N.Y. Civil Practice Law & Rules, §

5524, has directed that this action be

remitted to the Supreme Court, Suffolk

County, “there to be proceeded upon

according to law." Jurisdictional

Statement, 42a.

A. There Are Additional

Issues Awaiting Adju-

dication

This action has been returned

to the trial court, in contemplation of

possible further proceedings, because of

the limited consideration thus far given

to the issues appellants raised in their

complaint. The amended complaint herein

alleges seven causes of action, all

relating to the alleged breach of the

restrictive covenants prohibiting use of

the Pool-Grofman premises for any purpose

other than a single family dwelling.

However, only three of these issues have

been considered at all by the New York

courts: the first two causes of action,

which seek injunctive relief against the

alleged breach of the restrictive

covenants, and the seventh cause of

action, which alleges a violation of the

Contract Clause, Art. I, Section 10, cl.

l of the United States Constitution.

Appellants' third and fourth

causes of action are specific damages

claims. The third is against appellees

Pool and Grofman, and seeks exemplary

damages of $50,000 for reckless disregard

of the restrictive covenants plus any

profit realized by the lease of the

property to the NYC/Long Island County

Services Group and the New York State

Office of Mental Retardation and Develop-

mental Disabilities ("OMRDD") ("State ap-

pellees"). The fourth is against the

State appellees and seeks $50,000

exemplary damages for inducing a breach

of the restrictive covenants by Pool and

Grofman. The fifth and sixth causes of

action allege that the State appellees

have taken appellants' property without

just compensation, in violation of the

New York State Constitution and the Fifth

and Fourteenth Amendments to the United

States Constitution.

Because the proceeding that

reached the New York Court of Appeals,

and that is now before this Court, was an

10

interlocutory appeal arising from a

motion by appellants for summary judg-

ment, neither appellants' specific

damages claims nor their "taking" and

“just compensation" claims ever were con-

sidered by the New York courts. The

trial court issued a memorandum decision,

Jurisdictional Statement, la-10a which in

effect was a declaratory judgment that

the use of the Pool-Grofman premises’ for

a community residence was not consistent

with the restrictive covenants. However,

the trial court did not award appellants

any relief, finding that

there still exist ques-

tions of fact that can

only be resolved after

further discovery and

a trial concerning

whether the plaintiffs

have waived their

rights under the

covenant by violating .

the covenant them-

selves or whether they

should be estopped

ll

from enforcing the

restrictive covenant

due to laches or

previous acquiescence

in violations thereof.

There is also a

defense raised that

the character of the

neighborhood has so

changed as to defeat

the object and

purposes for which the

restrictions are

imposed.

Jurisdictional Statement, 9a-10a.

No trial on these issues has

ever occurred. Instead, appellees sought

an immediate interlocutory appeal to the

Appellate Division, see N.Y. Civil

Practice Law & Rules, § 5701, which

reversed the trial court and declared

there had been no violation of the

restrictive covenants. The Appellate

Division, on the grounds of New York

public policy, also dismissed the

complaint “insofar as it seeks injunctive

relief." Jurisdictional Statement, 25a.

12

On further appeal by appellants, the New

York Court of Appeals affirmed the

Appellate Division order denying in-

junctive relief, although on different

grounds. The Court of Appeals found that

the covenants had been violated but that

"{s]ince public policy prohibits en-

forcement of the restrictive covenants

against the community residence at 3

Johns Hollow Road, appellants' action

seeking to enjoin such use was properly

dismissed." Jurisdictional Statement,

4la. Thus the opinion of the Court of

Appeals made clear that the decision

related solely to injunctive relief.

This record in this action

makes clear how far this proceeding is

from a final judgment. If appellants

continue to pursue this action

(1) the trial must determine

13

whether appellants have waived

their rights, if any, under the

restrictive covenants by their

own violation thereof.

(2) the trial court must

determine whether appellants

have previously acquiesced in

the violations of the restric-

tive covenants.

(3) the trial court must

determine whether the Crane

Neck neighborhood has changed

in character to the extent that

the restrictive covenants'

objects and purposes are no

longer enforceable, a defense

to the action granted by New

York law. N.Y. Real Prop.

Acts. § 1951.

14

(4) the trial court must

determine whether a "taking" of

property has occurred, and if

so, the amount of compensation

to be awarded.

B. This Case Does Not Fall

Into The Special Categories

Where This Court has Reviewed

State Court Decisions Lacking

Complete Finality

In Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469 (1975), this Court

| summarized four categories of cases "in

| which the Court has treated the decision

of the federal issue as a final judgment

i for the purposes of 28 U.S.C. § 1257 and

has taken jurisdiction without awaiting

the completion of the additional pro-

ceedings anticipated in the lower state

courts." Id. at 477. But this Court

15

expressly noted that “[i]n most, if not

all, of the cases in these categories,

these additional proceedings would not

require the decision of other federal

questions that might also require review

by the Court at a later date...." Id.

This action presents the

precise circumstances identified in Cox

where interlocutory appellate review is

inappropriate. A decision by this Court

on the federal issue decided by the New

York Court of Appeals, the Contract

Clause issue, would leave unresolved the

other federal claim of plaintiffs, the

issue of whether there has been a taking

of plaintiffs' property without just

compensation.

"(Flurther proceedings are

necessary to resolve the federal question

whether there has been a taking at all.

16

The [State] court's decision, therefore,

is not final, and [this Court is] without

jurisdiction to review it." San Diego

Gas & Elec. Co. v. San Diego, 450 U.S.

621, 633 (1980). Moreover, consideration

of the taking issue alone, absent a

further determination of the compensation

that is constitutionally due, will not

yield a final judgment. Id. quoting

North Dakota Board of Pharmacy v. Sny-

der's Drug Stores, 414 U.S. 156, 163

(1973). See also Cox Broadcasting Corp.,

supra, 420 U.S. at 477 n.6.

This Court also noted in Cox

that the four special categories apply

where “immediate rather than delayed

review would be the best way to avoid

‘the mischief of economic waste and of

delayed justice'.” Id. at 477-78.

However, none of the exceptions per-

17

mitting immediate review is present here.

Even if this Court reversed on the

Contract Clause issue, appellants would

not gain any immediate relief. As

outlined above, several other issues

still have to be litigated before

appellants’ entitlement to any relief can

be established.

As to the four categories

themselves, none is applicable herein.

The first category is based on ‘practical

finality', i.e. that the decision on the

federal claim is as a practical matter

conclusive of the case because the party

asserting the claim has no other grounds

upon which to rest his case. Id. at 479.

This exception has been reserved for

cases in which a single federal issue has

been raised, see e.g., Mills v. Alabama,

abuse

18

384 U.S. 214 (1966); cf Minnick v. Calif.

Dep't of Corrections, 452 U.S. 105

(1981), and where the remaining pro-

cedures would be "mere formal gestures."

Mills v. Alabama, supra, 384 U.S. at 217.

This exception is inapplicable because,

as already noted, there are other federal

questions -- most notably the taking and

just compensation issues -- that remain

and can only be decided after a full

trial.

The second category involves

cases where "(t]he federal issue finally

decided by the highest court in the

State, will survive and require decision

regardless of the outcome of future

state-court proceedings." Cox Broad-

casting Corp., supra, 420 U.S. at 480.

This exception has been applied where

"[n]othing that could happen [in the

subsequent state-court proceedings] wceuld

19

foreclose or make unnecessary decision on

the federal question." Id.; see e.g.

Radio Station WOW, Inc. v. Johnson, 326

U.S. 120 (1945). In this action, by

contrast, the remaining issues not yet

litigated present a number of oppor-

tunities for appellants to obtain relief

sufficient to convince them to abandon

their Contract Clause claim. Although

appellees do not concede appellants'

entitlement to such relief, if such a

decision were obtained through the

litigation process it would certainly

remove their incentive to press the

existing federal claim.!

1. See Note, "The Finality Rule for

Supreme Court Review of State Court

Orders," 91 Harv.L.Rev. 1004, 1006

(1978)("Indeed, postponing appellate

consideration increases the pos-

sibility that challenged rulings

will not be appealed because subse-

quent events at trial may remove the

incentive for one or more parties to

press for review.").

20

In the third category are cases

in which if the party seeking review

loses on the merits, “the governing state

law would not permit him again to present

his federal claims for review." Cox

Broadcasting Corp. supra, 420 U.S. at

481. Appellants have not cited any New

York law which would preclude them from

reasserting their Contract Clause claim

so as to preserve it for review by this

Court and counsel for appellees' Pool and

Grofman do not know of any such barrier.

Moreover, after a trial, the completed

case “can be submitted for review within

the context of a developed factual record

(with] the articulated reasoning and

legal conclusions of the trial judge.”

Note, supra, 91 Harv. L. Rev. at 1006;

see also Minnick. v. Calif. Dep't. of

Corrections, supra, 452 U.S. at 120.

21

The fourth category of cases

applies where

the party seeking review

might prevail on the

merits on non-federal

grounds, thus rendering

unnecessary review of

the federal issue by

this Court, and where

reversal of the State

court on the federal

issue would be pre-

clusive of any further

litigation on the

relevant cause of action

rather than merely con-

trolling the nature and

character of, or deter-

mining the admissibility

of evidence in, the state

proceedings yet to come.

Cox Broadcasting Corp., supra, 420 U.S.

at 482-83.

In addition, this category applies only

to cases where “a refusal to immediately

review the state-court decision might

seriously erode federal policy." Id.

22

This exception is in appli-

cable because appellants do not seek to

preclude a possibly unnecessary state

court trial cf. id. at 482-484. On the

contrary, they seek to permit further

litigation of their claims for strict

enforcement of the covenants. Moreover

no important federal policy will be

eroded if interlocutory appellate review

is denied. Appellants have no federal

constitutional right to an injunction

2. In addition, a reversal by this

Court will not automatically entitle

appellants to an injunction pro-

hibiting further use of the Pool-Grof-

man premises as a community residence.

Thus, a reversal of the Contract

Clause issue will not place this

action within the first Cox excep-

tion. See text supra at 17-18.

Rather, the trial court already has

identified the substantial barriers

appellants must overcome before such

relief could be awarded. Jurisdic-

tional statement, 9a-l0a.

23

strictly enforcing their covenant.

Appellants also never moved for any

immediate relief on the theory that they

would suffer irreparable harm by a delay.

cf., National Socialist Party of America

v. Village of Skokie, 432 U.S. 43 (1977)

(per curiam). Indeed, the findings of

the trial court, Jurisdictional State-

ment, 9a-l0a, belie any suggestion that

denial of immediate review would cause

appellants any special harm. (See also

Incorporated Village of Old Field v.

Introne, 81 A.D. 2d 9060, 441 N.Y.S. 2d

418 (2d Dept. 1981), discussed infra at

_:)

This case does not fall into

any of the special categories enumerated

in Cox Broadcasting Corp. As there is

no final judgment, this Court lacks

jurisdiction to review the decision of

the New York Court of Appeals at this

24

time.

POINT II

THE DECISION BELOW RESTED

ON GROUNDS OF PUBLIC POLICY

AND NOT NECESSARILY ON ANY

NEW YORK STATUTE. ACCOR-

DINGLY, (1) THE DECISION

INVOLVED NO "LEGISLATIVE

IMPAIRMENT" AND DID NOT

REQUIRE A DETERMINATION

OF APPELLANTS' CONTRACT

CLAUSE CLAIM; (2) THERE

IS NO JURISDICTION HERE

ON APPEAL AS THE DECISION

BELOW DID NOT NECESSARILY

DRAW INTO QUESTION THE

VALIDITY OF A STATUTE OF

THE STATE

The Judicial Code, 28 U.S.C.

§ 1257, provides for review in this

Court of final judgments of claims under

the federal constitution, treaties or

statutes. Jurisdiction is absent, how-

ever, when the decision below rests on

adequate and independent state court

grounds and the opinion's discussion of

federal questions was unnecessary. See

Michigan v. Long, 103 S.Ct. 3469, 3474n.4

(1983). In this appeal, looking to the

25

"four corners of the decision" id. at

3475, the adequacy and independence of

the state law ground on which this de-

cision is based is clear, and the

decision on the Contract Clause was un-

necessary.

The decision of the New York

Court of Appeals herein ultimately rested

on its determination that the public pol-

icy of the state, and not any specific

state statute, precludes injunctive

enforcement of the restrictive covenants.

The opinion of the Court of Appeals con-

cludes by summarizing the holding as

follows:

Since public policy pro-

hibits enforcement of

the restrictive covenant

against the “community

residence” at 3 Johns

Hollow Road, appellants'

action seeking to enjoin

such use was properly

dismissed. (emphasis

added. )

26

Jurisdictional Statement, 4la.

Similarly, the court began its

discussion of the validity of the re-

strictive covenants by stating:

But even if use of the

property violates the

restrictive covenant,

that covenant cannot be

equitably enforced because

to do so would contravene

a longstanding public

policy favoring the

establishment of such

residences for the men-

tally retarded.

Id. at 3la-32a.

The opinion then continues

with a lengthy discussion of executive,

judicial and legislative acts which serve

as indicia of the public policy and which

effectuate that policy, concluding with

the statement:

Thus, the consistent, un-

equivocal legislative and

executive pronouncements

over the past 30 years

leave no doubt that it is

an important State policy

27

to deinstitutionalize

mentally and develop-

mentally disabled in-

dividuals, and to teach

them in “community

residences" such as the

one now maintained ...

in Crane Neck.

Id. at 34a-35a.

The opinion of the Court of

Appeals at one point speaks in terms that

might be construed as directly applying

Mental Hygiene Law, § 41.34 (f) to inval-

idate the restrictive covenants. The

Court of Appeals stated:

Given the avowed purpose

of this law, we conclude

that the Legislature did

not enact subcivision (f)

to erase the impediment

resulting from single

family requirements found .

in laws and ordinances

while leaving it intact

in private covenants,

and that the subdivision

applies to such deed

restrictions as well.

Jurisdictional Statement, 37a.

However, in discussing the

1978 statute which added § 41.34 (f£) to

28

Mental Hygiene Law, the Court of Appeals

began by stating that "(t]he State policy

was further reaffirmed by the passage in

1978 of what has come to be known as the

"Padavan Law'...." (emphasis added).

Jurisdictional Statement, 33a.

Thus, the decision below rested

on the public policy of the state and not

on the Mental Hygiene Law itself. Hence,

no determination of the constitutionality

of that statute, as contrasted to judic-

ially declared public policy, was necessary

in the dispositio n of the appeal before

the New York Court of Appeals. Accord-

ingly, there is no issue with respect to

the Contract Clause of the United States

Constitution, because by its express

terms and by judicial interpretation, the

Contract Clause applies only to legis-

lative impairments. Barrows v. Jackson,

29 ,

346 U.S. 249, 260 (1953).

Although the New York Court of

Appeals made reference in a footnote to

the Contract Clause requirement of a

Legislative impairment, Jurisdictional

Statement, 40a n.5, it did not expressly

decide whether a Legislative impairment

had occurred. > Rather, the court con-

cluded that the Contract Clause had not

been violated because the public policy

of the state favoring deinstitutional-

ization gives effect to important state

policies in a manner reasonable and

necessary to achieve those ends. Juris-

dictional Statement, 40a-4la. This

decision was a correct application of the

3. The court's very first sentence in

its discussion of the Contract Clause

refers to a refusal “to enjoin vio-

lation of the restrictive covenant

on public policy grounds." Juris-

dictional Statement, 39a.

30

decisions of this Court, see infra at

30-33, but it was unnecessary to a deter-

mination of the appeal absent a finding

that a Legislative impairment existed.

In addition, since the decision

rested on public policy grounds, there

is no appealable order here. The decision

below did not draw "in question the

validity of a statute of a state" on

federal grounds. 28 U.S.C. § 1257 (2).

POINT III

THERE IS NO SUBSTANTIAL

FEDERAL QUESTION PRESENTED

BY THIS APPEAL

This Court need not perform

any Contract Clause analysis of Mental

Hygiene Law, § 41.34. See text supra at

24-29. However, upon such review, ap-

pellants' claim of a violation of the

31

Contract Clause is so insubstantial that

if this Court were to undertake review,

it should summarily affirm. Appellants

have not suffered a substantial impair-

ment of their contract. In addition,

the New York community residence program

implements important state and federal

policies in a manner that is both reason-

able and necessary to achieve those policy

goals. See Energy Reserves Group, Inc.

v. Kansas Power & Light Co., 459 U.S. 400,

412 (1983).

A. There Has Been No

Substantial Impairment

of Appellants' Con-

tractual Rights

At the time the Crane Neck

4. Appellants' attempt to raise a just

compensation claim on this appeal is

premature as this claim has not been

adjudicated in the state courts. See

text supra at 9-10.

32

restrictive covenants were created, New

York had a longstanding policy of regu-

lating land use and of refusing to enforce

restrictive covenants when such enforce-

ment would be inequitable. In a review

of the restrictive covenants in the

context of the Contract Clause, the

expectations of appellants must be read

to include the contemporaneous state

law pertaining to both the subject matter

of the covenant and to its enforcement.

"This principle presumes that contracting

parties adopt the terms of their bargain

in reliance on the law in effect at the

time the agreement was reached." United

States Trust Co. v. New Jersey, 431 U.S.

1, 19 n.17 (1977); see also Veix v.

Sixth Ward Bldg. & Loan Ass'n, 310 U.S.

32, 37-8 (1940). In addition, a "state

regulation that restricts a party to

gains it reasonably expected from the

contract does not necessarily constitute

33

a substantial impairment." Energy Re-

serves Group, supra, 459 U.S. at 4ll.

This action involves a 1945

covenant restricting the use of land to

single family dwellings. Jurisdictional

Statement, 2a-3a. However, long before

this covenant was written, the subject

matter of this covenant, neighborhood

land use control, had been held within the

police power of the states generally, see

Village of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926), and of New York in

particular. Id. at 390 (citing Lincoln

Trust Co. v. Williams Bldg. Corp., 229

N.Y. 313, 128 N.E. 209 (1920). The

authority to regulate land use had been

exercised in New York by means of the state

zoning enabling acts, first enacted in

34

1901.” The 1978 amendments to the Mental

Hygiene Law establishing the site selec-

tion procedures for community residences

for the developmentally disabled are but

another example in a continuing process

of legislative and judicial law-making

concerning the use of land in New York

State.°

The contractual expectations

of appellants' predecessor in interest

who created the covenants thirty-nine

years ago must be read to have anticipated

that over the years there would be further

. See 1901 N.Y. Laws, Ch. 466; N.Y. Gen.

City Law, § 20 et seq.; N.Y. Town

Law, § 261 et seq.; N.Y. Village Law,

7-700 et seq.

6. See e.g., N.Y. Envtl. Conserv. Law,

§ 16-0101 et seq. (flood control);

N.Y. Gen. Mun. Law, § 96-a (historic

sites preservation); N.Y. Parks &

Rec. Law, § 14.01 et seq. (same);

N.Y. Unconsol. Laws, § 6251 et seq.

(urban development).

35

reasonable regulation of the use of the

affected land. Otherwise, landowners

could wholly negate state land use plan-

ning by use of restrictive covenants.

This Court long ago stated:

One whose rights, such

as they are, are subject

to state restriction,

cannot remove them from

the power of the State

by making contracts about

them. The contract will

carry with it the infir-

mity of the subject

matter.

Hudson Co. v. McCarter, 209 U.S. 349, 357

(1908), cited with approval in the Court's

recent Contract Clause cases. See e.g.,

Exxon Corp. v. Eagerton, 103 S.Ct. 2296,

2305 (1983).

Further, appellants cannot

claim any reasonable expectation that New

York law would guarantee them specific

performance For the breach or impairment

of the restrictive covenants. At the

36

time the covenants were written, and for

more than half a century before that date,

New York law was clear and unambiguous:

the state courts would not enforce re-

strictive covenants to protect interfer-

ence of insubstantial value, particularly

where enforcement would be inequitable.

See e.g., Kew Gardens Corp. v. Ciro's

Plaza, Inc., 261 A.D. 2d 576, 580, 26

N.Y.S. 2d 553 (2d Dept. 1941); McClure

v. Leaycraft, 183 N.Y. 36, 41, 75 N.E.

961 (1905); Trustees of Columbia Coll. v.

Thacher, 87 N.Y. 311, 316-17 (1882). In

1958, the state legislature enacted sec-

tion 346 of the New York Real Property

Law, 1958 N.Y. Laws, Ch. 864 (re-enacted

in 1963 as N.Y. Real Property Actions &

Proceedings Law, § 1951) to codify the

doctrine expressed in these cases that

restrictive covenants may be denied

equitable enforcement. See generally

37

Orange & Rockland Util. v. Philwold Es-

tates, Inc., 52 N.Y. 2d 253,264-5, 437

N.Y¥.S. 2d 291, 296, 418 N.E. 2d 1310

(1981); Commentary, 1958 N.Y. Laws, at

1188. The policy codified in this statute

clearly demonstrates that appellants'

predecessor in interest could not

reasonably expect that equitable enforce-

ment of the covenants would necessarily

be granted in future years.

The very statute appellants

attack, Mental Hygiene Law, § 41.34, pro-

vides appellants additional procedural

safeguards not previously available under

New York law. Before a community resid-

ence may be established, the sponsor must

notify the municipality in which it will

be located. Id., § 41.34(c). The

local government can hold a public hear-

ing, id., § 41.34(c)(2), and can then

suggest alternate sites to the one

38

proposed for the community xesidence.

If the alternate site is equivalent to

the one proposed, the local government

can compel the sponsor to open the

residence at the alternate location. Id.,

. § 41.34(c)(4). The local government can

obtain a formal due process hearing

before the Commissioner of OMRDD, id.,

§ 41.34(c)(5), and judicial review of

the Commissioner's decision is authorized.

Id., § 41.34(d). Appellants, as the

neighbors of the proposed community

residence, obviously could participate

in these procedures, including the jud-

icial review of the Commissioner's

J . 7

decision.

7. See Grasmere Homeowners' Ass'n v. In-

trone, 84 A.D. 2d 778, 443 N.Y.S. 2d

956 (2d Dept. 1981)(community resid-

ence neighbors have standing to chal-

lenge Commissioner's decision under

§ 41.34(d)); Matter of Browe v.

Champagne, 97 Misc. 2d 1058, 413 N.Y.

S. 2d 103 (Sup. Ct. Rensselear Co.

1979) (same).

39

Most importantly, Mental

Hygiene Law, § 41.34 also continues the

substantive common law by providing that

the Commissioner cannot approve a com-

munity residence site "if he determines

that the nature and character of the area

in which the facility is to be based

would be substantially altered as a result

of the establishment of the facility."

Id., § 41.34(c)(5). This provision

evidences a third reason why no substan-

tial impairment of the covenant has

occurred. Before this community stei@enee

was permitted to open, the local govern-

ment requested a hearing and a decision

of the Commissioner; his determination

that the Crane Neck neighborhood would

not be substantially altered was then

appealed. The Appellate Division, Second

Department affirmed. Incorporated Village

of Old Field v. Introne, 81 A.D. 2d 906,

40

441 N.Y.S. 2d 418 (2d Dept. 1981). Thus,

a New York court in a collateral proceed-

ing under the Mental Hygiene Law has

found no substantial damage to appellants.

The cases cited in the per curiam

decision of the Appellate Division, ia.?

state that @Side from conclusory allega-

tions by residents and local officials,

no proof was adduced that there would be

any substantial alteration of the area,

and that such conclusory statements are

not sufficient to rebut the substantial

evidence supporting the Commissioner's

decision.

8. Town of Hempstead v. Commissioner, 89

A.D. 2d 850, 851, 453 N.Y¥.S. 2d 32,

33 (2d Dept. 1982); Grasmere Home-

owners' Ass'n v. Introne, supra, 84

A.D. 2d at 779, 443 N.Y.S. 2d at 957;

Town of Hempstead v. Com'r, State of

N.Y¥., 78 A.D. 2d 677, 678, 432 N.Y.S.

2d 399 (2d Dept. 1980); Town of

Greenburgh v. Coughlin, 73 A.D. 2d

672, 423 N.Y.S. 2d 209 (2d Dept. 1979)

mot for lv. to app. den. 49 N.Y. 2d

704, 427 N.Y.S. 2d 1025 (1980).

41

The lack of any substantial

impairment is also clear from the very

limited scope of the decisions by the

state courts herein not to enforce the

restrictive covenant. The decision below

applies only to the establishment or

operation of the one community residence

in question. In every other respect the

covenants stand, and all use of the

properties covered by them remain limited

to single family dwellings. The proper-

ties may not be used for commercial pur-

poses, for multiple family dwellings or

for institutions. Asa result, it is

clear that there has been no substantial

impairment of appellants' contractual

rights.

B. The State Courts'

Refusal to Enforce

the Restrictive

Covenants to Pro-

hibit Even A Single

Community Residence

42

for the Devel-

opmentally Disabled

Gives Effect to

Important State and

Federal Policies for

Deinstitutionalization

in a Manner that is

both Reasonable and

Necessary to Achieve

fhose Policy Goals

The need for New York State

to expand upon its 30 year effort of

deinstitutionalization and community

placement for the developmentally

disabled, on which Mental Hygiene Law,

§ 41.34 is based, see Jurisdictional

Statement, 32a-35a, is clearly a "sig--

nificant and legitimate public policy”

seeking to remedy "a broad and general

social and economic problem" Energy

Reserves Group, supra, 459 U.S. at 411-12.

See also Jurisdictional Statement, 4la.

The stat ute addresses the need to

accommodate tens of thousands of develop-

mentally disabled people who have been,

currently are, or in the next few years |

will be in need of community based

residential placements.

Although New York has the lar-

gest community based residential place-

ment program in the nation, the unmet

demand for such placements has been and

remains overwhelming. Of the estimated

119,000 to 300,000 New York residents

who are developmentally disabled, there

are approximately 5,000 in community

residences and approximately 8,300 in

other types of community based settings.

N.Y.S. OMRDD, New York State Plan: Mental

Retardation and Developmental Disabilities

(1984-1987) 43, 188 [Feb. 1984]. In 1983,

the total annual budget outlay for com-

munity based placements in New York was

$ 23,633,000. Id. at 153.

Currently, however, fewer than

44

one half of the developmentally disabled

persons who are in need of community

residence places have them. Id. at 188.

In the next decade, the gap between the

demand for community placements and the

available supply is expected to widen.

In addition to the existing institution-

alized population awaiting community

placement, the state has identified ap-

proximately 15,000 substantially disabled

persons living with their aging parents

or siblings who will soon require commun-_

ity residence placements. Id. at 47-8.

More than 5,000 others under age 21 who are

currently in residential programs oper-

ated as part of the special education

program in New York State, New York Edu-

cation Law, §§ 4401 et seg., will require

community based placements when their

educational entitlement expires. New York

State Plan (1984-1987), supra at 47-8.

Because of the shortage of appropriate

residential settings or services, the i

legislature recently authorized funding

for them to remain in their existing

residential placements as a stop-gap

measure. 1983 N.Y. Laws, Ch. 570. In

total, by 1991, the demand for community

based placements is expected to increase

by 3l percent, far outdistancing the

estimated growth in supply. New York

State Plan (1984-1987), supra at 46, 55.

In addition, the importance

attached by the legislature to expansion

of New York's deinstitutionalization and

community placement efforts is not appro-

priate for close judicial scrutiny.

That legislative judgment is inextricably

intertwined with professional judgments

concerning the proper setting for the

habilitation of the developmentally dis-

abled. "It is not appropriate for courts

to specify which of several professionally

46

acceptable choices should have been

followed." Youngberg v. Romeo, 457 U.S.

307, 321 (1982)(quoting id., 644 F.2d 147

178 (3d Cir: 1980)(en banc) (Seitz, C.J.

concurring)). The judgments reached by

appropriate professionals, and by exten-

sion here, the legislative adoption of

those judgments into the Mental Hygiene

Law, are entitled to a presumption of

correctness. Id. at 323.

The statute does not excuse

the state from any of its own contractual

obligations, cf. United States Trust Co.,

supra, and because fewer than one-seventh

of all community residences in New York

are state-operated, Janicki, Mayeda &

Epple, "Availability of Group Homes for

Persons with Mental Retardation in the

United States," 21 Mental Retardation 45,

47 (1983), the statute is not designed to

impair private contracts for the state's

47

advantage. As noted above at 37-39, the

statute's main effect is to rationalize

the process for community residence site

selection; that it may incidentally af-

fect appellants' alleged contract rights

does not lessen its legitimacy. See

Exxon Corp. v. Eagerton, supra, 103 S.Ct.

at 2306.

The inescapable conclusion is

that the public purposes underlying Mental

Hygiene Law, § 41.34 are both significant

and legitimate. Jurisdictional Statement,

4la. The state most clearly is exercising

its police power to protect the health

and welfare of its developmentally dis-

abled citizens. Zubli v. Community Main-

streaming Associates, 102 Misc. 2d 320,

423 N.Y.S. 2d 982, 993 (Sup. Ct. Nassau

Co. 1979) aff'd on opinion below 74 A.D.

2d 624, 425 N.¥.S. 2d 263 (2d Dept.) aff'd

as modified 50 N.Y. 2d 1024, 431 N.Y.S.

48

2d 813, 410 N.E. 2d 746 (1980); Incorpor-

ated Village of Old Field v. Introne,

104 Misc. 2d 122, 127, 430 N.Y.S. 2d 192

(Sup. Ct. Suffolk Co. 1980). This

interest is not less important than the

Minnesota interest in protecting the

economic interests of its older citizens,

Home Bldg. & Loan Ass'n v. Blaisdell, 290

U.S. 398 (1934), or the Kansas or Alabama

interests in protecting their consumers

of natural gas, see Energy Reserves Group,

supra, 459 U.S. at 417; Exxon Corp. v.

Eagerton, supra, 103 S.Ct. at 2306.

Equally clear is that any

impairment of appellants' contract rights

caused by Mental Hygiene Law, § 41.34

"[is based] upon reasonable conditions

and [is] of a character appropriate to

the public purpose justifying [the legis-

lation's] adoption." Energy Reserves

Group, supra, 459 U.S. at 412 (quoting

til

49

United States Trust Co., supra, 459 U.S.

at 22). Mental Hygiene Law, § 41.34

"strikes a delicate balance between the

needs of the mentally disabled and the

concerns of the community in which such

residences will be located." New York

State Senate Mental Hygiene and Addiction

Control Committee, "Site Selection of

Community Residences for the Mentally

Disabled: Historical Perspective and

Legislation" ii [April 1979].° That

balance is expressed in the site selection

procedures which empower municipalities

and homeowners to discuss and object to

the site of proposed community residences.

Mental Hygiene Law, §§ 41.34(b)-(d). The

9. This report, although prepared after

enactment of Mental Hygiene Law, §

41.34, was cited approvingly by the

New York Court of Appeals as an ex-

planation of the legislature's intent.

Jurisdictional Statement, 37a.

50

right to object -- which had not existed

before the statute was enacted, Incorpor-

ated Village of Old Field v. Introne,

supra, 104 Misc. 2d at 126, 430 N.Y.S. 2d

at 195 -- ensures that no municipality or

neighborhood will be burdened with an

overconcentration of community residences.

The statute explicitly prohibits community

residences that would substantially alter

the nature or character of the area.

Mental Hygiene Law, § 41.34(c)(5).

If New York State is to carry

out its deinstitutionalization program in

an equitable manner, its legislature has

concluded that the sponsor s of community

residences for the developmentally dis-

abled must have the power to override

local zoning laws or restrictive covenants

that otherwise would frustrate these ef-

forts. See 1978 N.Y. Laws, Ch. 468,

51

51.29 The state legislature considered

10. The legislatures of 21 other states

have reached similar public policy

judgments in favor of community res-

idential opportunities for the de-

velopmentally disabled. Running

through all of these statutes are

the same two themes that underlie

/ Mental Hygiene Law, § 41.34: first,

/ that the developmentally disabled

and society as a whose will benefit

/ from the creation of small, non-

institutional living opportunities;

and second, that these living op-

portunities cause no substantial

impact in the neighborhoods in which

they are located, and their estab-

lishment is a matter of statewide

importance that must be given prior-

ity over local zoning ordinances and

other exclusionary devices. Cal.

Welf. & Inst. Code § 5115 (1972 &

Supp. 1984); Colo. Rev. Stat. § 3l-

23-303(2) (1977); Hawaii Rev. Stat.

§ 333E- 3.5 (Supp. 1983); Ind. Code

Ann. § 16-13-21-14 (Burns Supp. 1983);

Me. Rev. Stat. Ann. tit. 30 § 4962-A

(Supp. 1983-84); Md. Health Gen.

Code Ann. § 7-102 (1982 & Supp. 1983);

Mich. Comp. Laws Ann. § 125.2l6a

(West Supp. 1984-85); Minn. Stat.

Ann. §§ 245.812(3) (1982); 462.357(7)

(TSupp. 1984); Mont. Code Ann. §§

53-20-101; 53-20-301 (1983); Neb.

Rev. Stat. § 18-1745 (1983); Nev.

Rev. Stat. § 278.021 (1983); N.J.

Rev. Stat. Ann. § 40:55D - 66.1

(West 1984-85); N.C. Gen. Stat. §§

168-20; 168-22; 168-23 (1982); Ohio

Rev. Code Ann. § 5123.19(D) (Page

1981 & Supp. 1983); R.I. Gen. Laws

i

the general public support for the goals

of community based programs for the

developmentally disabled, see Site Selec-

tion of Community Residences, supra at 16,

footnote 10 cont'd from preceding page:

§§ 45-24-22; 45-24-23 (1980 & Supp.

1983); S.C. Code Ann. § 44-21-20

(Law. Co-op 1976); Tenn. Code Ann.

§ 13-24-102 (1980); Vt. Stat. Ann.

tit. 24 § 4409 (1979 & Supp. 1983-84);

Va. Code § 15.1-486.2 (1981); Wis.

Stat. Ann. § 62-63(i)(3) (West Supp.

1983-84).

7 In addition, the Arizona, Calif-

ornia, Indiana, North Carolina and

Wisconsin legislatures have explic-

itly stated that restrictive covenants

will not be enforced to prohibit the

‘ establishment of community residences.

Of these, only the Arizona and Cal-

i ifornia legislatures were concerned

‘ with the retroactive application of

: their statutes. Ariz. Rev. Stat.

§ 36-582 (Supp. 1983-84); Cal.

Health & Safety Code § 1566-5 (West

Supp. 1984); Ind. Code § 16-13-21-14

(Burns Supp. 1983); N.C. Gen. Stat.

§ 168-23 (1982); Wis. Stat. Ann. §

62.23(i)(3) West Supp. 1983-84). But

see Welsch v. Goswick, 130 Cal. App.

: 3d 398, 181 Cal. Rptr. 703 (1982)

(holding that the California statute

and the state policy on which it

rests evidences changed conditions

to prevent equitable enforcement of

a pre-existing restrictive covenant)

Rawle ct o> Aa Mand

ret ae

33

but recognized that some local governments

and groups of private citizens will use

zoning ordinances or restrictive covenants

to resist efforts to place small commun-

ity residences in their neighborhoods.

ta.11

The result, unacceptable to the

New York State legislature, will be a

shortageof community placements and a

ll. The legislative committee reported:

General support for the

community movement seems

to erode, however, when

the discussion moves away

from a hypothetical question

to the vacant building next

door. Thus, the often

heard paradoxical state-

ment: "Yes, I support

community residences for

the mentally retarded,

but not in my neighbor-

hood."

Site Selection of Community Residences,

supra at 16. See also Adams Cty.

Ass'n for Retarded Citizens v. City

of Westminster, 196 Col. 79, 580 P.2d

1246, 1250 (Sup. Ct. 1978) ("Clearly

[the Colorado statute] was enacted

--. to preclude municipalities from

barring group homes from neighbor-

hoods on the basis of fears and

stereotypes about handicapped per-

sons.")

_

54

concentration of community residences

along "the path of least resistance:"

i.e., in more tolerant areas or in areas

in which the residents are poor or other-

wise cannot mount expensive legal attacks

to the site selected for a proposed

community residence. Id. at 26, 27. The

legislature especially wanted to prevent

the "disproportionate distribution of

community residences," 1978 N.Y. Laws,

Ch. 468 § 1, which would yield "Mental

Hygiene ghettos" in low income neighbor-

hoods. Site Selection of Community

Residences, supra at 27. Such a result

is both inequitable and wi! defeat the

beneficial purposes to be achieved by

providing the developmentally disabled

with the "least restrictive environment"

that is consistent with their needs.

1978 N.Y. Laws, Ch. 468 § l. Pa

New York State has chosen to address

55

these competing interests in a manner

that offers both substantive and pro-

cedural protections to residents of an

area in which a community residence is

proposed. By conditioning the establish-

ment of a community residence on a finding

that no substantial alteration of the

area will occur, the state protects local

residents and at the same time fosters

the development and fair distribution

of community residences throughout the

state. Id.

CONCLUSION

For the foregoing reasons, the

instant appeal should be dismissed for

want of jurisdiction, or the judgment of

the New York Court of Appeals should be

affirmed.

Dated: New

York, New York

August 23, 1984

*

Of Counsel:

Lonnie Davis

Respectfully submitted,

LEWIS A. GOLINKER

(Counsel of Record)

Herbert Semmel

Counsel for Appellees

Pool and Grofman

New York Lawyers for the

Public Interest, Inc.

36 West 44th Street

New York, New York 10036

(212) 575-5138

Disability Law Project

949 Market Street

Tacoma, Washington 98402

(206) 383-18

48

* Counsel gratefully acknowledge the

assistance of Brian Zimmerman, Law

Clerk, New York Lawyers for the Public

Interest,

Law Clerk

Inc., and Laurie Genevro,

, Shearman & Sterling.