Motion — Parkview Associates v. City of New York

9) FILE D

JUL a

No. 87-1837 1) ly

JOSEPH F. spanio:

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

a

PARKVIEW ASSOCIATES,

Appellant,

“98:-

CITY OF NEW YORK, COMMISSIONER OF

BUILDINGS OF THE CITY OF NEW YORK,

DEPARTMENT OF BUILDINGS OF THE CITY

OF NEW YORK, BOARD OF STANDARDS

AND APPEALS OF THE CITY OF NEW YORK

and CIVITAS CITIZENS, INC.,

Appellees.

ON APPEAL FROM THE NEW YORK STATE

COURT OF APPEALS

MOTION TO DISMISS OR AFFIRM

PETER L. ZIMROTH,

Corporation Counsel of

the City of New York,

Attorney for Municipal Appellees,

100 Church Street,

New York, New York 10007

(212) 566-4338 or 4396

LEONARD J. KOERNER,*

GABRIEL TAUSSIG,

PAMELA SEIDER DOLGOW,

ELIZABETH S. NATRELLA,

PHYLLIS ARNOLD,

of Counsel.

July 11, 1988

*Attorney of Record

TABLE OF CONTENTS

TABLE OR AUTHORITIES ..ccccccccsces

ye oe y ra aa

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

fy Pre rer rerrereeeererurerere

GORINIONS BELOW ..nccccccccccccvccccs

ARGUMENT

THIS APPEAL IS NOT WITHIN

THIS COURT'S JURISDICTION

AND SHOULD BE DISMISSED.

IN ANY EVENT, THE APPEAL

SHOULD BE DISMISSED FOR WANT

OF A SUBSTANTIAL FEDERAL

QUESTION. THE STATE COURT'S

CONSTRUCTION OF THE ZONING

LAW FORECLOSES ANY CLAIM

THAT PARKVIEW ACQUIRED AN

INTEREST IN ITS BUILDING

PERMIT SUBJECT TO DUE

PROCESS PROTECTION. NO DUE

PROCESS ISSUE IS OTHERWISE

PRESENTED BY THE STATE

COURT'S APPLICATION OF NEW

YORK'S COMMON LAW OF

ESTOPPEL TO THE FACTS OF

ETRE Sea shee ecanecesasaus

CS F965 Sees casas shaeeas

TABLE OF AUTHORITIES

Cases:

“324 Liquor Corp. v. Duffy,

479 U.S. 335, 107

ECR TEPER EET E Le

Albert v. Board of Standards

and Appeals, 89 A.D.2d 960,

454 N.Y.S.2d 108

(2d Dept., 1982), app. dism.

RE RUD ccc ccc cesccccccces

American Bank & Trust Co. v.

Dallas County, 463 U.S. 855,

reh. denied,

OEMS voc ccccccccccececs

B & G Construction Corp. v.

Board of Appeals, 309 N.Y. 730,

GUE ME EMD cece ccc cece cece

Bi-Metallic Investment Co. v.

State Board of Equalization,

I IED oe ccc cece ccc cces

Board of Regents v. Roth,

Ec cccccscccccces

Bolling v. Sharpe, 347 U.S. 497

(1954) PUMMMEWRED Ss Sheevesececcocccces

Chevron Oil Co. v. Huson,

Eee

Page

23,

26

Citizens for the Preservation of

Windsor Terrace v. Smith,

122 A.D.2d 827,

505 N.Y.S.2d 896

CRUE ac Rd Sk aeeecccncccacces 28

City of Buffalo v. Roadway

Transit Co., 303 N.Y. 453,

Pe Meee Te RED secccccwccccsccaces 29

City of New York v. City Civil

Service Commission, 60 N.Y.2d 436,

EH ERED oo wnccc cece cecccce 42

City of Yonkers v. Rentways,

Inc., 304 N.Y. 499,

Ev dcrcccececccaccese 42

' Cleveland Board of Education v.

Loudermill, 470 U.S. 532

GE VIDE 25,

Cox v. Louisiana, 379 U.S. 559,

reh. denied, 380 U.S. 926

Ce eee atu gb eeurescecesas 45

Creative Environments, Inc. v.

Estabrook, 680 F.2d 822

(ist Cir.), cert. denied,

ee ED. Sa wcccocncccesacsene 35,

Davidson v. New Orleans,

fe oe f .. eSrrre 22

Dobbins vy. City of Los Angeles,

ee eS 6 la’ Serr 44

Examining Board of Engineers v.

Flores de Otero, 426 U.S. 572

Pe Ae Cohewwesnee us PW es 6 one nce 51

Exxon Corp. v. Eagerton,

Se ete PUEDE «tcc ccccesccccccesse 41

Faymor Development Co. vy.

Board of Standards and Appeals,

45 N.Y.2d 560,

Be eee EP EEUED ccccccccccccccccoss 43

Federal Crop Insurance

Corp. v. Merrill,

RTE cwccccccesnccccccces 54

Guaranty Trust Co. vy.

Blodgett, 287 U.S. 509

DURA beeeteb see sen eesedccceccesecees 26

Hanson v. Denckla, 357 U.S. 235,

reh. denied, 358 U.S. 858

EE) “ecb ebbeeeSubebeeeesccecccscnccces 19

Heckler v. Community Health

Services of Crawford County,

WL, OE ED «= co cco sccsccece 55

Hodel v. Indiana, 452 U.S. 314

dec ck neues Le 48

Hodel v. Irving, _U.S.__, 107 S. Ct.

PE EE FT neuscccccecccccccccasseccess 54

Hodel v. Virginia Surface

Mining and Reclamation

Association; Inc.,

es re 49

Hynes v. Pasco County,

Florida, 801 F.2d 1269

CR EG MDG hcc sc cicccccccccccescce 57

Jayne Estates, Inc. v. Raynor,

22 N.Y.2d 417,

Be Messen BRE CRUD cb csccccscccccecese 28

Kingsley International

Pictures Corp. v. Regents

of the State University of

New York, 360 U.S. 684

Siok eree eee cegdebnceccececcens 26

Landmark Colony of Oyster

Bay v. Board of Supervisors,

113 A.D.2d 741,

493 N.Y.S.2d 340

ST cagercsceessscscessseies 43

-Lefrak Forest Hills Corp. v.

Galvin, 40 A.D.2d 211,

338 N.Y.S.2d 932 (2d Dept.,

1972), aff'd, 32 N.Y.2d 796,

298 N.E.2d 685,

cert. denied, 414 U.S. 1004

RE RET a ep 43

Mallett v. Village of Mamaroneck,

283 App. Div. 1094,

131 N.Y.S.2d 504

(2d Dept. ,1954), aff'd,

308 N.Y. 821,

Rae? eadeeee. Ge GED |. Saccevcsccccees 32

Matter of Cowan v. Kern,

41 N.Y.2d 591, 363 N.E.2d 305

Se Re Cau eta ee aac bare beeen cess soe 50

iv

Matter of H.P.V.T. Corp. v. McGuire,

58 Misc. 2d 159, 294 N.Y.S.2d 787

(Sup. Ct., Suffolk Co.,

DE). cette teeUekenew ew eae Ses0ec0eeeees 33

Matter of Hamptons Hospital and

Medical Center v. Moore, 52 N.Y.2d

ae & x | RSS rrr errr re 42

Matter of Pokoik v. Silsdorf,

40 N.Y.2d 769,

_ eee f Fe. PPT TIT Tirere 43

Matter of Temkin v. Karagheuzoff,

34 N.Y.2d 324,

Se cee: TP CREED bs oe cere cceccoceses 43

Memphis Light, Gas and Water

Division v. Craft, 436 U.S. 1

PE LesteEn sah Geb asa doedcvcnacrcesons 47

Michigan v. Flint and Pere

Marquette Railroad Co.,

RS RE Serre TTT rrr Tee 40

Moore v. City of East Cleveland,

Tek We. Ge ERUTTD cetccccaces ie a-awabaoee 51,

52

Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306

PE Saciceseteeehese sce tBse de enescces 29

Natchev v. Klein, 41 N.Y.2d 833,

PEE Wate BE GOWEED bib dcccccccssccces 28

New York and New England Railroad

Co. v. Bristol, 151 U.S. 556

SE CA ao 64 eae awa She 4 abs bo 060 64:0:09 22

New York City Employees’ Retirement

System v. Eliot, 267 N.Y. 193,

I ON gg cscs acscicccccss 42

O'Brien v. Skinner,

6s | a 26

Pace Resources, Inc. v. Shrewsbury

Township, 808 F.2d 1023 (3d Cir.),

cert. denied, _U.S.__, 107 S. Ct.

ean 57

Pennell v. City of San Jose, U.S. ;

SS. rR 48

People vy. Miller, 304 N.Y. 105,

Rg a errr 44

People v. Mobil Oil Corp.,

48 N.Y.2d 192,

eee PE CRO EED cc ccccccccccccccccs 32

Perrotta v. City of New York,

107 A.D.2d 320,

486 N.Y.S.2d 941 (1st Dept.),

aff'd, 66 N.Y.2d 859,

489 N.E.2d 255 (1985) __—............. te, aes 28,

42

Rochin v. California, 342 U.S. 165

OEE A Sl,

52

Rogin v. Bensalem Township,

616 F.2d 680 (3d Cir., 1980),

cert. denied sub nom.,

Mark-Garner Associates, Inc. v.

Bensalem Township, 450 U.S. 1029

rr 39

Schneider v. Rusk, 377 U.S. 163

CRUDE) cocccceccesscccscccvscesssccscese

Shapiro v. Town of Oyster Bay,

27 Misc. 2d 844, 211

N.Y.S.2d 414 (Sup. Ct., Nassau

Co., 1961), aff'd, 20 A.D.2d 850,

249 N.Y.S.2d 663

gk Re PT TTT Te Per err ee

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238, reh. denied, 465 U.S.

oo), rer rrr rr

Soron Realty Co., Inc. v. Town of

Geddes, 23 A.D.2d 165,

259 N.Y.S.2d 559

Po TE shaceavecevoscconeesses

South Gwinnett Venture vy.

Pruitt, 491 F.2d 5 (5th Cir.)

(en banc), cert. denied,

Ge ee ET SEED Se sedccccccccscvcses

Stephan v. United States,

— ee ee 8 Pe eer eer

Street v. New York, 394 U.S. 576

[RD wt eesbhebesoaecaciscdsccsnececoce

Studen v. Beebe, 588 F.2d 560

Ce kG EEE “Sdw ASSES CR Codd ocr eccces

Telluride Power Transmission Co. v.

Rio Grande Western Railway Co.,

BS ds, WE CEE ebb nbedictscccnscves

Texaco, Inc. v. Short, 454 U.S. 516

TE wendedeehaReseudheekebbenenncésen

L

7

United States vy. Locke, 471 U.S. 84

Ne icc ecacecicces 54

United States v. Pennsylvania

Industrial Chemical Corp., 411 U.S.

DTT SPE be ne ebesceccccccccccccccecs 45

United States v. Welden,

TMD cocccccccceccceuetece 34

Usery v. Turner Elkhorn

Mining Co., 428 U.S. 1

ieee eee beesoccccccccccecce 46

Village of Euclid v. Ambler

Realty Co., 272 U.S. 365

. i DME MERER SUE cccccescceccess 49

Webb's Fabulous Pharmacies,

Inc. v. Beckwith, 449 U.S. 155

DCTP PTE SERRE SSS SSS e co cccccccccce 47

Wheeler v. City of Pleasant

Grove, 664 F.2d 99 (5th Cir.,

1981), cert. denied, 456 U.S.

Eee cas ccccecccccccecs 44

Williamson County Regional

Planning Commission v. Hamilton

Bem, Ste U.8. Le CIGES) .n.cccccsccces 49

Wilson v. Cook, 327 U.S. 474

ERE WB BCGS Gees eccescccccccccccccccces 19

Yale Auto Parts, Inc. v.

Johnson, 758 F.2d 54

Ts cee cc ascacccccccccccecs 58

Constitution

U.S. Const., Fourteenth

PEMOTIGTROMS 2 ccc cccccccccccccccccccccceces 21

Statutes

Be Goto Ge GEST Ee) ccccccceccccccsocccese 18

Pub. L. No. 100-352 (1988) _............ 18

McKinney's Civil Practice Law

and Rules

reer ye ry rr ry rr rrr ry 13

DD (Hkh eee earencaccoceaceeos 9

SOUEEECRD 8 8— oe Pegs cc cccccccceses .

New York City Administrative Code

eae) (we hen e esas cen deksusecses 9

§27-142

§27-157

Dn. tiedecedadessdseacanseeeenner 28,

47

Dt: + istetskkeee Civatsesceeneaeden 28,

47

New York City Charter

PE ee eS ee ee 6,

25

SE | 08a dee eee eek eo enon eae 6,

25

ee a ie el oes ta edeues 50

ETSI TE edie ss ay a 50

ERE ERR eee aD 11

New York City Zoning Resolution

Diet tees heeehntenéeeededéeceees 36,

37

i Mid bebealdeenettsSeneesoceeses 37

Me oo Lccbecedéeceseees 32,

37

ee 50,

56

it 2) e¢odekencooeseeoeceues 50

aids Ceca end aeeakene 36,

37

CM. ” cc sceseebeseceseoesee 5

een tae eee utes 5

Other Authorities

Sutherland, Statutory Construction,

De 8 8=—)ssacccecesccecce 32

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

PARKVIEW ASSOCIATES,

Appellant,

-¥8.°

CITY OF NEW YORK, COMMISSIONER OF

BUILDINGS OF THE CITY OF NEW YORK,

DEPARTMENT OF BUILDINGS OF THE CITY

OF NEW YORK, BOARD OF STANDARDS

AND APPEALS OF THE CITY OF NEW YORK

and CIVITAS CITIZENS, INC.,

Appellees.

ON APPEAL FROM THE NEW YORK STATE

COURT OF APPEALS

MOTION TO DISMISS OR AFFIRM

STATEMENT

Appellees, the City of the New York,

the Commissioner of Buildings, the

Department of Buildings, and the Board of

Standards and Appeals of the City of New

York ("municipal appellees"), move to

dismiss the present appeal or, alternatively,

to affirm the final order of the Court of

Appeals of the State of New York entered

February 9, 1988, on the grounds that the

appeal is not within this Court's jurisdiction

and does not present a substantial federal

question.

QUESTIONS PRESENTED

Bi Has appellant, a developer who

undertook construction of a 31-story building

within a special zoning district in which

building heights may not exceed 19 stories,

pursuant to a building permit found by the

state court to have been invalid when issued

on the grounds that it failed to conform to

applicable soning law, raised a_ substantial

federal question, when the state court has

construed the zoning law to have imposed a

district boundary dating back without change

to its original enactment in 1973, thus at all

times encompassing the property, and when

state law does not protect one's right to

build pursuant to an _ invalidly issued

building permit?

2. May the New York State Court of

Appeals apply well-settled principles of state

common law to preclude the assertion of an

estoppel against the City when an estoppel

would frustrate the legislative will, when the

undisputed facts suggest that this veteran

developer's reliance on the codified version

of the law, reflecting indicative shading of

the actual zoning district boundary, without

further pies. before constructing a

multi-million dollar project on _ property

unquestionably subject to that boundary at

purchase, was unreasonable, and when the

developer's assertions of actual, good faith

reliance are disputed, unexplored on this.

record, and _ subject to development and

consideration in its pending application for a

variance?

FACTS

This appeal concerns the partial

revocation of appellant Parkview Associates'

("Parkview's"

) building permit for premises

located at 108 East 96th Street, New York,

New York ("the building"). The

administrative actions effectuating and

sustaining the revocation were based upon

findings that, at all relevant dates when

Department of Buildings' approvals and

permits were issued and _ revoked, the

building failed to conform to~- applicable

zoning law delineating the 96th Street

boundary of the Special Park Improvement

District ("PI District"), and thus limiting the

allowable height of the building. Parkview's

application for a variance from the strict

enforcement of the height limitation is

pending before the Board of Standards and

Appeals ("BSA") and will be the subject of a

hearing before that body cn August 9, 1988.

The PI District was established in 1973

by resolution enacted by the Board of

Estimate ("Board"). See Zoning Resolution

§§92-00 et seq. The PI District regulations

impose upon buildings within the District a

maximum height of 19 stories or 210 feet,

whichever is less. Zoning Resolution §92-06.

As originally enacted, the PI _ District

boundary on 96th Street extended 150 feet

east of Park Avenue. Parkview has never

disputed this fact.

The building is located on property

situated on the south side of 96th Street,

- commencing 90 feet east of the southeast

corner formed by the intersection of 96th

Street and Park Avenue, and extending 100

feet east from there. Parkview purchased

the property in 1982 at a time when it was

unquestionably subject to the 150 foot PI

District boundary on 96th Street.

The New York City Charter ("Charter")

prescribes the only procedure for changing

-5-

the Zoning Resolution, including the zoning

map. The zoning map is _legisiatively

established by the Board through language

contained in adopted resolutions and is

depicted graphically on the maps contained

in the published Zoning Resolution. Sections

197-c and 200 of the Charter vest the Board

with the authority, after public hearing, to

designate zoning districts and to amend the

zoning map following review and

recommendation by affected community boards

and the City Planning Commission ("CPC").

When acting on such matters, the Board

functions in its legislative capacity and

approves changes by the adoption of

resolutions describing the action taken. The

resolutions are available to the public at the

offices of the Board and are provided to the

Department of Buildings.

The ‘relevant visual depiction of the

Zoning Resolution's zoning map containing

Parkview's property is map 6b. The only

-§-

legislative amendment to the PI District

boundary in the vicinity of Parkview's

property occurred on March 3, 1983 when

the Board approved a resolution reflecting a

metes and bounds description of changes

reducing the boundary of the PI District

from 150 feet to 100 feet east of Park

Avenue for only the area between 88th

Street and the lower half of the _ block

between 95th and 96th Streets, leaving intact

the 150 foot dimension east of Park Avenue

for the upper half of the block between 95th

and 96th Streets.

Subsequent to the Board's adoption of

the resolution effecting these changes, an

error in the printing of Zoning Resolution

map 6b resulted in the omission of the

number "150" and thus the failure to clearly

indicate on the visual depiction of the map,

other than by the shading, the continuation

of the 150 foot dimension on 96th Street.

Even so, the shading on the subsequently

-7-

printed Zoning Resolution map 6b displayed a

longer PI District boundary on 96th Street

than on streets to the south. In sum, an

examination of the metes and _ bounds

description of the zoning map change of

March 3, 1983, as well as a copy of the

diagram of the proposed changes presented

to the members of the Board on that date

clearly reveaied the continuation of the 150

foot dimension on 96th Street, but the

subsequently printed visual representation of

the change, apart from the shading, did not

otherwise indicate the 150 foot boundary on

96th Street.

Allegedly upon the invalid assumption

that the PI boundary on 96th = Street

extended only 100 feet east of Park

1 , ;

Avenue, Parkview proposed the construction

I Parkview's assertions of actual,

reasonable, justifiable, and good faith

(Footnote Continued)

-8-

ew

of a building with a height of 19 stories for

the 10 feet of the property within 100 feet of

Park Avenue and 31. stories for’ the

remainder of the building. Pursuant to §§

27-140, 27-142 and 27-157 of the New York

City Administrative Code, Parkview's

architect certified to the Department of

Buildings the application's compliance with

applicable law. In 1985, a Department of

Buildings examiner approved that plan and

(Footnote Continued)

reliance on the 6b zoning map are contested.

The municipal parties have answered these

allegations by denying adequate knowledge

or information sufficient to form a belief as

to their truth. Section 3018(a) of New

York's Civil Practice Law and Rules gives

these responses the effect of a _ denial.

However, we requested an opportunity for

discovery should the estoppel issue not be

resolved against Parkview as a matter of

law. Throughout this litigation we have

urged that estoppel is unavailable as a

matter of law and that, alternatively, if it

does lie, based on the undisputed facts in

the record, Parkview is not entitled to

equitable relief. Having rejected Parkview's

estoppel claim without a hearing, the state

courts did not adjudicate the nature of

Parkview's reliance.

the Department of Buildings issued a

building permit. |

Thereafter, in late 1985, the

Department of City Planning circulated a

revised map 6b to reflect subsequent but

unrelated Board changes of September, 1985.

The number "150" was reinserted on this

version of the 6b map to clarify the picture.

On July i1, 1986, the Borough

Superintendent of the Department of

Buildings issued a stop work order for those

portions of the building within 150 feet of

Park Avenue and at the 20th story _

above. The stop work order afforded

Parkview 5 days within which to demonstrate

compliance with applicable laws or suffer

revocation of the permit. On July 21, 1986,

Parkview's counsel tendered its arguments to

the Commissioner of Buildings. Finding that

Parkview had failed to demonstrate

compliance, on July 22 1986, the

I

Commissioner of Buildings revoked the

o 10-

approval of plans and _ permits for’ the

building to the extent that such approvals

authorized construction above the 19th story

‘ (Juris. St. App., pp. 23a-24a). The

revocation was based on the developer's

failure to demonstrate compliance’ with

applicable zoning law continuing the 150 foot

PI District boundary on 96th Street.

On July 23, 1986, Parkview appealed

the Commissioner's partial revocation to the

BSA. Parkview communicated directly with

the O* ice of the Corporation Counsel —

concerning the provisions of Charter

§669(c), which then pewvided, in part, that

an appeal to the BSA "shall stay all

proceedings in furtherance of the action

"The Corporation Counsel

appealed from....

advised Parkview that Charter §669(c) did

not have the effect of nullifying the

revocation or of otherwise authorizing work

without a_ permit. Despite having been

* clearly advised that any further construction

-11-

at the building would be performed at the

developer's own risk of having to

subsequently legalize the structure should

the BSA sustain the revocation, Parkview

continued to perform work on the structure

above the 19th story.

On October 14, 1986, the BSA denied

Parkview's appeal and sustained the Building

Commissioner's partial revocation of the

permit (Juris. St. App., pp. 20a-22a). It

found that both the metes and bounds Board

resolution of March 3, 1983 as well as the

October 25, 1982 diagram of proposed

changes presented to the Board reflected in

words and by dotted lines, respectively, the

absence of any change to the PI District

boundary on 96th Street and that, in any

event, the metes and bounds description

controls. Accordingly, it found that the

boundary was 150 feet on 96th Street at all

dates on which permits were issued and

revoked.

-12-

Parkview then commenced a proceeding

in the New York State Supreme Court

pursuant to Article 78 of the Civil Practice

Law and Rules challenging as arbitrary the

administrative revocation of its building

permit and asserting equitable and

constitutional objections to the revocation.

Parkview claimed that its right to build a

31-story building had vested, that the

Department of Buildings should be estopped

from strict enforcement of the law, and that

the revocation deprived it of property

without due process of law or _ just

compensation in violation of the state and

federal constitutions. Civitas Citizens, Inc.,

an interested community group, was

permitted to intervene and opposed _ the

petition. The municipal appellees. also

opposed the petition and counterclaimed for

an order enjoining Parkview's maintenance of

the building in excess of the lesser of 19

-13-

_———e =

stories or 210 feet and directing the removal

of the illegal portion of the building.

OPINIONS BELOW

The State Supreme Court rejected

Parkview's claims and dismissed its petition

without prejudice to its application for a

variance (Juris. St. App., pp. lla-19a). It

sustained the agency determinations that the

96th Street PI District boundary has always

been 150 feet, holding that the metes and

bounds description of the change in the

March 3_ resojution controls, rendering

Parkview's permit invalid when issued. It

rejected the vested rights ciaim, citing

well-settled New York law that no rights

arise in consequence of the issuance of

invalid permits. It also rejected the estoppel

claim, finding the matter controlled by New

York's general rule that estoppel is

unavailable against the government. Finally,

the constitutional claims were found

premature and otherwise meritless in light of

-14-

the availability of the variance procedure.

The Supreme Court also ruled the City's

counterclaim premature absent a decision on

Parkview's variance application.

By unanimous order, the Appellate’

Division, First Department, affirmed the

order below for the reasons stated by the

Justice below (Juris. St. App., pp. 9a-10a).

129 A.D.2d 405, 513 N.Y.S.2d 342 (lst

Dept., 1987).

By order entered July 39, 1987,

Parkview's appeal to the New York State

Court of Appeals pursuant to CPLR

§5601(b)(1) was dismissed sua sponte "upon

the ground that no substantial constitutional

question is directly involved." 70 N.Y.2d

692 (1987). Thereafter, Parkview sought

and obtained leave to appeal to the Court of

Appeals. 70 N.Y¥.2d 610 (1987). On

February 9, 1988, the Court of Appeals

affirmed (71 N.Y.2d 274, 519 N.E.2d 1372

-15-

(1988)) and on April 28, 1988, it denied

reargument. N.Y.2d __ (1988).

The Court of Appeals’ held that

Parkview's permit was invalid when issued,

finding that the 96th Street PI District

boundary, "pursuant to the metes and

bounds, remained at all times 150 feet .

[leaving Parkview's property] unaffected by

[the] 1983 change and .. . aiways

woireiniol by the 1973 _ original

enactment." 71 N.Y.2d at 279, 519 N.E.2d

at 1373. The Court thus held proper the

agency determinations revoking and

sustaining the revocation of Parkview's

permit. It refused to permit the assertion of

an estoppel against the City's enforcement of

the law and, in light of the pending variance

application, did not otherwise address

Parkview's claim to have suffered a taking of

-16-

its property without due process or just

compensation.

On this appeal, Parkview has conceded

the prematurity of its takings claim. See

Juris. St., p. 28 n.8.

-17-

it

ARGUMENT

THIS APPEAL IS NOT WITHIN

THIS COURT'S JURISDICTION

AND SHOULD BE DISMISSED.

IN ANY EVENT, THE APPEAL

SHOULD BE DISMISSED FOR WANT

OF A SUBSTANTIAL FEDERAL

QUESTION. THE STATE COURT'S

CONSTRUCTION OF THE ZONING

LAW FORECLOSES ANY CLAIM

THAT PARKVIEW ACQUIRED AN

INTEREST IN ITS BUILDING

PERMIT SUBJECT TO DUE

PROCESS PROTECTION. NO DUE

PROCESS ISSUE IS OTHERWISE

PRESENTED BY THE STATE

COURT'S APPLICATION OF NEW

YORK'S COMMON LAW OF

ESTOPPEL TO THE FACTS OF

THIS CASE. |

(1)

Parkview's attempt to invoke jurisdiction

pursuant to 28 U.S.C. §1257(2) is defective

as no statute's validity has here been drawn

into question. Prior to its recent amendment

(Pub. L. No. 100-352), 28 U.S.C. §1257(2)

gave this Court jurisdiction to review a final

judgment or decree of New York's State

"

Court of Appeals where there is drawn

in question the validity of a statute ... on

ie? iy

the ground of its being repugnan_ to the

Constitution, ... and the decision is in favor

of its validity." Federal constitutional

objections to the exercise of authority

pursuant to a statute whose validity is not

otherwise challenged cannot form the

predicate for an _ appeal. Hanson _ Vv.

Denckla, 357 U.S. 235, 244, reh. denied,

358 U.S. 858 (1958); Wilson v. Cook, 327

U.S. 474, 482 (1946). See Silkwood v. Kerr

- McGee Corp., 464 U.S. 238, 247, reh.

denied, 465 U.S. 1074 (1984). Parkview's

claim to have been deprived of property

without due process of law is based on its

objections to the revocation of its building

permit. It “hus asserts a challenge to the

effect of the exercise of authority under

local law without otherwise drawing into

question the constitutional validity of any

statute. Thus, this Court lacks jurisdiction

of the appeal.

-19-

(2)

In any event, this appeal presents no

substantial federal constitutional question.

Parkview's effort to demonstrate otherwise

through its oblique presentation of the

issues represents nothing more than an

ottempt to bring before this Court its

dissatisfaction with the Court of Appeals’

resolution of its state law claims. By

sustaining the finding that the PI District

boundary on 96th Street is and has always

been 150 feet, the Court of Appeals has

properly construed applicable leeat law to

have conferred no legally protected interest

in the building permit and has, in so doing,

properly rejected the contention that the

insertion of the number "150" on zoning map

6b in 1985 constituted a substantive change

in the law. Thus, the Court of Appeals’

construction of local law forecloses

Parkview's assertion of due process claims.

-20-

Nor does the Court of Appeals’

treatment of the case as one involving simple

mistake rather than a - discretionary

interpretation which, although reasonable, is

nonetheless erroneous, and its attendant

suggestion on the facts of this case that a

good faith inquirer's reasonable diligence

would have disclosed the boundary's true

location, raise a substantial due process

issue warranting this Court's review. This is

especially so when the pendency of the

variance application makes the extent of

Parkview's harm, if any, incapable of

determination at this time.

Parkview here attempts to re-litigate in

assertedly constitutional form the questions

of state and local law disposed of by New

York's highest state court. But as this

Court long ago commented:

the Fourteenth Amendment

cannot be availed of "as a means

of bringing to the test of the

decision of this court the abstract

-21-

opinions of every unsuccessful

litigant in the state court of the

justice of the decision against him

"

New York and New _England Railroad

Company v. _ Bristol, 151 U.S. 556, 570

(1894), quoting Devidson v. New Orleans, 96

U.S. 97, 104 (1877). Parkview's

constitutional characterization of its appeal

should be rejected with a finding that it

presents no substantial federal question.

A. Parkview is _ foreclosed from, raising

procedural due process claims. __

The state law determination that the PI

District boundary on 96th Street has never

. We characterize as procedural due process

claims those of Parkview's contentions that

are predicated on the assertion that the PI

District boundary was redrawn before the

permit was issued and was revised or

reinterpreted sometime’ thereafter. This

issue is not premature and was not so

treated by the Court of Appeals. Rather, it

was disposed of through the Court's

construction of the zoning law.

-22-

been changed from 150 feet is beyond this

Court's review. See, e.g., 324 Liquor

Corp. v. Duffy, 479 U.S. 335, __ n.6, 107

S.Ct. 720, 725 n.6 (1987). It compels two

conclusions as a matter of state law: 1) that

Parkview's building permit was void as

having been issued without = statutory

authority, conferring no property interest

subject to due process’ protection; and

2) that the 1985 insertion of the number

"150" on the codified zoning map 6b was

without legal significance.

Parkview concedes that the Court of

Appeals resolved a question of state law by

sustaining the agency determinations that the

PI District boundary is 150 feet from Park

Avenue at 96th Street (Juris. St., p. 16).

Its assertions of constitutional infirmity,

however, are premised on its inappropriate

effort to impeach this holding. Parkview's

claim to have been deprived of property

without due process of law assumes that it

-33-

possessed a property interest subject to due

process’ protection. Parkview’ essentially

argues that the Board redrew or should be

found to have redrawn the 96th Street PI

District boundary on March 3, 1983, making

its building permit lawful when issued, and

giving rise to a protectible right to

construct a 3l-story building on so much of

the property as extends beyond 100 feet of

Park Avenue. See Juris. St., pp. 6-8, 24.

So, Parkview continues, the insertion of the

number "150" on the codified zoning map 6b

in 1985 is claimed to have been a "secret

revision" (Juris. St., pp. 10, 20) of the

zoning map that deprived -it of property

without sufficient notice or adequate

opportunity to mitigate the consequences of

the purported deprivation. Parkview makes

no. claim directed to the propriety of the

procedures employed in effecting the

revocation ; nor does it claim any

constitutional infirmity deriving from or any

-24-

violation of the Charter's statutory

requirements governing amendment of the

zoning law. See Charter §§ 197-c and 200.

Rather, its contention is that the City

applied to Parkview's pre-existing property

interest a substantively revised or

reinterpreted zoning map.

Parkview's formulation of the _ issue

suffers from the fallacy of assuming a

predicate that was found against it as a

matter of state law, viz., that the PI

District boundary on 96th Street was

redrawn before its permit was issued. Due

process guarantees apply only to _ those

property interests created or defined by

an independent source such as state

law." Board of Regents v. Roth , 408 U.S.

564, 577 (1972). While it is true that, once

a property interest is found in state law,

the federal constitution measures the

adequacy of procedures employed for its

deprivation (see Cleveland Board of

-25-

Education v. Loudermill, 470 U.S. 532, 541

(1985)), the threshold question of whether a

property interest exists must be answered

by reference to a source independent of the

constitution, such as state law. The Court

of Appeals in the instant case has answered

that question by construing local zoning law

and by holding that, as so. construed,

Parkview acquired no legally protected right

under state law. 71 N.Y.2d at 279-282, 519

N.E.2d at 1373-1375. This state court

determination forecloses Parkview's claim of

constitutional infirmity.

The construction given the zoning law

by the. Court of Appeals is binding on this

Court. 324 Liquor Corp. v. Duffy, 479

U.S. 335, ___n.6, 107 S. Ct. 720, 725 n.6

(1987); O'Brien v. Skinner, 414 U.S. 524,

531 (1974); Kingsley International Pictures

Corp. v. Regents of the University of the

State of New York, 360 U.S. 684, 688

(1959). See also Guaranty Trust Co. v.

-26-

‘

-

Blodgett, 287 ~=2U:-L SS. 909, 513 = (1933) ;

Telluride Power Transmission Co. v. Rio

Grande Western Railway Co., 187 U.S. 569,

584 (1903). The Court of Appeals construed

the zoning law to have imposed a 150 foot PI

District boundary on 96th Street from the

date of its 1973 enactment through the

present, without any change having been

effected by intervening legislative

amendments to the zoning map or by

insertion of the number "150" on the codified

version of the zoning map. This

construction of the governing zoning law is

beyond this Court's review.

Equally unimpeachable in this Court are

the legal conclusions that arise under New

York law from the fact that the PI District

boundary on 96th Street is and has always

been 150 feet. The Administrative Code

leaves the Commissioner of Buildings without

discretion to approve a permit application

that fails to conform to applicable provisions

-27-

—s —

Cees nM shite seni ch Mb

of law, and authorizes the revocation of a

permit issued in error when conditions are

such that a permit ought not have been

issued. Administrative Code §§27-191 and

27-197. See Citizens for the Preservation of

Windsor Terrace v. Smith, 122 A.D.2d 827,

505 N.Y.S.2d 896 (2d Dept., 1986).

Accordingly, the Court of Appeals properly

concluded that Parkview's permit was invalid

when issued, as purporting to authorize

construction in excess of the _ statutory

height limitation within the 150 foot PI

District boundary, and was thus properly

revoked. Under long-standing principles of

state law, no claim of vested rights can arise

in consequence of the issuance of invalid

building permits. Natchev_v. Klein, 41

N.Y.2d 833, 834, 361 N.E.2d 1043, 1044

(1977); Jayne Estates, Inc. v. Raynor, 22

N.Y.2d 417, 422, 239 N.E.2d 713, 715

(1968); Perrotta v. City of New York, 107

A.D.2d 320, 325, 486 N.Y.S.2d 941, 945 (lst

-28-

Dept.), aff'd, 66 N.Y.2d 859, 489 N.E.2d

255 (1985). See also B & G Construction

Corp. v. Board of Appeals, 309 N.Y. 730,

732, 128 N.E.2d 423, 424 (1955); City of

Buffalo v. Roadway Transit Co., 303 N.Y.

453, 463, 104 N.E.2d 96, 100 (1952); Albert

v. Board of Standards and Appeals, 89

A.D.2d 960, 962, 454 N.Y.S.2d 108, 110-111

(2d Dept., 1982), app. dism., 59 N.Y.2d

673 (1983). Under New York law, Parkview

acquired no legally cognizable right to

construct a 3l-story building within 150 feet

of Park Avenue.”

Even if this Court were to examine the

Court of Appeals’ construction of the zoning

. It is for this reason that Parkview's

reliance on Mullane v. Central Hanover Bank

& Trust Co., 339 U.S. 306 (1950) and its

progeny is misplaced. See Juris. St., pp.

20-22. A threshold state law property

interest was a necessary predicate to the

application of due process guarantees in

those cases and Parkview can make no claim

to such an interest here.

-29-

law, we submit that it should conclude, as

did the state court, that the PI District

boundary on 96th Street is and has always

been 150 feet, making Parkview's permit

invalid when issued. This conclusion is

evident from an examination of the

proceedings effecting the zoning map change

of March 3, 1983, for Parkview does not

dispute the fact that the boundary was 150

feet prior to that time and does not suggest

that the boundary's alteration was effected

by some other legislative act.°

On March 3, 1983, the Board of

Estimate enacted a resolution approving

6 Parkview cites May 24, 1984 Board of

Estimate legislative changes to map 6b in

support of its assertion that the boundary

change it claims was effected in 1983 was

carried forward through subsequent

proceedings (Juris. St., pp. 8, 18).

Parkview has never claimed that the 96th

Street PI District boundary was affected by

any legislation other than the March 3, 1983

Board of Estimate resolution.

-30-

certain zoning map changes that

unequivocally retained the 150 foot PI

District boundary on 96th Street. Both the

text describing the changes and _ their

graphic representation on the CPC certified

diagram of October 25, 1982, submitted to

the Board in support of CPC's

recommendation to approve the changes,

clearly reflect no change to the 96th Street

PI District ooundary. The October 25, 1982

CPC diagram showed that only the area

enclosed by a dotted line was proposed to be

altered, and the dotted line extended north

only to the midblock between east 95th

Street and east 96th Street. More

importantly, the metes and bounds

description of the changes contained in the

resolution reflected in words the absence of

any reduction to 100 feet on 96th Street.

Indeed, Parkview concedes that the

Board's metes and bounds description reveals

no reduction in the 150 foc’ boundary. See

-31-

Juris. St., p. 7. Its factual assertion that

the October 25, 1982 diagram shows a

reduction on 96th street was rejected by

every court below, as the diagram does not

include 96th Street in the change and is

thus consistent with the metes and bonds

description.

Even assuming, arguendo, that the

October 25 diagram did not clearly accord

with the Board's metes and _ bounds

description of the zoning map change, the

description would nonetheless control so as

to result in an unambiguous continuation of

the 150 foot dimension on 96th Street.

Specific statutory provisions prevail over

general ones. See Sutherland Stat. Const.

§46.05 (4th Ed.); People v. Mobil Oil Corp.,

48 N.Y.2d 192, 199-200, 397 N.E.2d 724, 728

(1979); Zoning Resolution §12-01.° Thus,

within the resolution itself, the particular

metes and bounds description controls the

general reference io the October 25 diagram.

Moreover, because the Board's resolution

constitutes the legislation effecting the map

change and contains a clear and unambiguous

metes and bounds description of the change,

it leaves no doubt that the map change

continued the 150 foot PI District dimension

on 96th Street. See Mallett v. Village of

Mamaroneck, 283 App. Div. 1094, 1094-1095,

131 N.Y.S.2d 504, 505 (2d Dept., 1954),

(Footnote Continued)

-332-

ARE TT RAS, Ca Sat can EBT, ET Tal RIES BO A IM IR oy at A ela

The issue in this case stems from an

error in printing the Zoning Resolution

version of the 6b zoning map subsequent to

the Board's approval of certain changes on

March 3, 1983. That error lends no support

to Parkview's assertion that the zoning map

in effect when its permit was_ issued

reflected a reduction of the PI District

boundary to 100 feet. The problem is not

unlike that which results when a provision of

positive law, actually and specifically enacted

by proper authority, is at variance with the

codified version of the law. For example,

such cases of inconsistency between’ the

Statutes at Large, enacted as positive law,

and the codified United States Code are

(Footnote Continued)

aff'd, 308 N.Y. 821, 125 N.E.2d 873 (1955).

Compare Soron Realty Co., Inc. v. Town of

Geddes, 23 A.D.2d 165, 168, 259 N.Y.S.2d

559, 561-562 (4th Dept., 1965); Matter of

H.P.V.T. Corp. v. McGuire, 58 Misc. 2d

159, 162-163, 294 N.Y.S.2d 787, 791 (Sup.

Ct., Suffolk Co., 1968).

-33-

resolved with the rule that the positive law

prevails over the _ codification. American

Bank & Trust Co. v. Dallas County, 463

U.S. 3855, 864 n.8, reh. denied, 463 U.S.

1250 (1983); United States v. Welden, 377

U.S. 95, 98 n.4 (1964); Stephan v. United

States, 319 U.S. 423, 426 (1943). In the

instant case, the textual metes and bounds

description of the zoning map_ change,

having been actually and specifically enacted

by the Board by its resolution of March 3,

1983, prevails over any inconsistency in the

graphic representation of the change

reflected in the subsequent printing of the

Zoning Resolution's maps.

’ No significance attaches to the fact that

the Department of City Planning sponsors

the publication of the Zoning Resolution (see

Juris. St., pp.- 5-7). The Department of

City Planning necessarily functions in

different capacities as the source of

proposed zoning map changes and as

publisher of those changes enacted by the

(Footnote Continued)

-34-

:

This conclusion properly recognizes the

fact that map 6b is not a statute and that

the Board does not legislate zoning changes

by enacting pictures. The statutory

enactment in the present matter is the

Board's March 3 resolution. Indeed, New

York City's statutory zoning is reflected

exclusively in the Board's resolutions.

Zoning is a state and local function, and the

fixing of zoning district boundaries is a

legislative act that must be effected by a

legislative body. See, e.g., Creative

Environments, Inc. v. Estabrook, 680 F.2d

822, 833 (1st Cir.), cert. denied, 459 U.S.

989 (1982); Shapiro v. Town of Oyster Bay,

27 Misc. 2d 844, 846-847, 211 N.Y.S.2d 414,

417 (Sup. Ct., Nassau Co., 1961), aff'd, 20

(Footnote Continued)

Board. No administrative printing error can

change the controlling legislative action of

the Board as reflected in the language of its

resolutions.

-35-

ial eokithlebenes aati tis > Ei

ot

A.D.2d 850, 249 N.Y.S.2d 663 (2d Dept.,

1964). The graphic representations of

zoning district boundaries contained in the

published Zoning Resolution's zoning maps

are codifications without independent legal

effect. The Board's March 3. enacted

resolution unequivocally maintained the 150

foot dimension on 96th Street notwithstanding

the printing error on the codified version of

map 6b.

Parkview's reliance on the interpretive

provisions of Zoning Resolution §76-131(c)?

and on the _ incorporation provisions. of

Zoning Resolution gi1-14)° begs the question

° See Juris. St., pp. 7, 10. Zoning

Resolution §76-131(c) provides that in

situations there specified where "no

_ dimensions are shown" the boundary shall be

100 feet.

10

Seé Juris. St., p. 5. Zoning Resolution

§11-14 incorporates into the Resolution the

zoning maps depicting the location and

boundaries of zoning districts.

-36-

RS ee Snare eC

Sa te

i Se

Bal

in this case. The interpretive provisions of

§76-131(c) apply only where no dimensions

are shown, but the Board's March 3

resolution clearly indicates dimensions.

Indeed, these interpretive provisions have

no independent legal _ significance with

respect to the fixing of zoning district

boundaries. Moreover, the incorporation

provisions of §11-14 simply cannot be held to

incorporate a viel depiction of the zoning

map at odds with the statutory zoning map

enacted through the Board's adoption of its

resolution. See Zoning Resolution §§11-22

and 12-0l1(a) and (b) (Juris. St. App., p.

27a) (providing, respectively, that, as to

provisions covering the same subject matter,

the more restrictive shall govern, that the

particular controls the general, and that the

text controls over any illustration). The

Board's resolution constitutes the legislation

fixing the PI District boundary on 96th

Street and retaining it unequivocally at 150

-37-

feet. It is that controlling resolution that is

incorporated into the published Zoning

Resolution.

The Court of Appeals thus properly

construed New York City's zoning law to

have imposed a 150 foot PI District boundary

on 96th Street dating back without change to

the establishment of the PI District in 1973.

In light of this construction, there can be

no claim that the 1985 insertion of the

number "150" on a_= version of Zoning

Resolution map 6b circulated after Parkview's

permit was issued constituted a substantive

change in, or revision of, the boundary.

The insertion of the number effected no legal

alteration at ali, as the zoning map change,

as statutorily enacted by the Board on March

3, maintained this 150 foot boundary. The

insertion of the number’ constituted a

ministerial act of clarifying the codification

by placing the number "150" where it was

otherwise prescribed by law and where the

-38-

NNN stalin oath So di =i DASA i TO i RRC Ball Se “Ail eA ba ly Sa ieee teat ee ME yee On. a SPL wr

shading otherwise indicated it tc be. Under

the circumstances of this case, Parkview has

received all the process it was due. See

Bi-Metallic Investment Co. v. State Board of

Equalization, 239 U.S. 441, 445 (1915);

Rogin v. Bensalem Township, 616 F.2d 680,

692-694 (3d Cir., 1980), cert. denied sub

nom. Mark-Garner _ Associates, Inc. Vv.

Bensalem Township, 450 U.S. 1029 (1981).

In sum, Parkview acquired no interest

in its building permit subject to due process

protection, nor were its rights in any way

impaired by the simple act of placing the

number "150" where the law already fixed a

150 foot boundary. This appeal presents no

substantial federal question warranting this

Court's review.

-39-

scant aieseak sins

B. No due process issue is presented by

the Court of Appeals' application of New

York's common law of estoppel to the

facts of this case.

(1)

Parkview's assertion of constitutional

infirmity deriving from the Court of Appeals'

disposition of the estoppel issue (see Juris.

a., PP. 22-27) does not present a

substantial federal question. Parkview here

inappropriately re-argues its estoppel claim.

Application of state common law principles of

estoppel is simply not within this Court's

authority to entertain. Michigan v._ Flint

and Pere Marquette Railroad Co., 152 U.S.

363, 368 (1894). Moreover, on the facts of

this case there is nothing so shocking about

the application of state law so as to warrant

invalidation ~ on federal constitutional

grounds. Thus, the appeal should _ be

-40-

Scr bld sshallh abdbibalies | sparbiaistiee

MEDI RA BARON Na, wicca Std

1c! MB ll Wt SE RS NTE gg

dismissed for want of a substantial federal

question.

The Court of Appeals in the instant

case applied well-settled principles of New

York State's common law of estoppel. On

the basis of ample precedent, it held that

this case is governed by the general rule in

New York that estoppel is unavailable to

prevent a governmental agency from

enforcing a statute or to ratify

administrative error in the issuance of a

at The Court of Appeals did not expressly

pass upon a purported due process claim

independent of the estoppel issue and of

Parkview's claim to have suffered a taking of

its property without due process or just

compensation. In such an instance, absent a

demonstration to the contrary, it is assumed

that the failure to address the question was

due to a failure to have properly presented

it in the state court. Exxon Corp. v.

Eagerton, 462 U.S. 176, 181 n.3 (1983);

Street v. New York, 394 U.S. 576, 582

(1969). Parkview has not demonstrated that

it properly presented in the state courts its

claim that application of New York's estoppel

law deprives it of property without due

process of law.

-41-

pete et 2 Nee i

building permit. 71 N.Y.2d at 282, 519

N.E.2d at 1374-1375. See Perrotta v. City

of New York, 66 N.Y.2d 859, 489 N.E.2d 255

(1985); City of New York v. City Civil

Service Commission, 60 N.Y.2d 436, 448-449,

458 N.E.2d 354, 361 (1983); Matter _ of

Hamptons Hospital and Medical Center vy.

Moore, 52 N.Y.2d 88, 93, 417 N.E.2d 533,

536 (1981). See also City of Yonkers v.

Rentways, Inc., 304 N.Y. 499, 505, 109

N.E.2d 597, 599 (1952); New York City

Employees' Retirement System v. Eliot, 267

N.Y. 193, 203, 196 N.E. 23 (1935). The

all those __ policy

Court acknowledged

salle which foreclose estoppel against a

governmental entity in all but the rarest

cases...." 71 N.Y¥.2d at 282, 519 N.E.2d at

1375. These policy considerations consist in

the important public interest in preserving

the separation of powers and in insuring

that the law as enacted - including those

portions of the City's comprehensive zoning

-42-

scheme that prescribe the PI District height

simitation as well as_ provisions for its

variation - be enforced as written. On the

facts of this case, the Court of Appeals

found no occasion to depart from the general

no estoppel rule. ie

on This is not to say that the New York

state courts adhere blindly to this result.

Rather, they perform a careful case-by-case

analysis and have not hesitated to prevent

strict enforcement of the law when private

parties have secured vested rights under a

permit valid when issued but assertedly

affected by a subsequent change in the law

or when the government has been found to

have acted in bad faith. See Faymor

Development Co. v. Board of Standards and

Appeals, 45 N.Y.2d 560, 565-566, 383

N.E.2d 100, 102-103 (1978); Matter of Pokoik

v. Silsdorf, 40 N.Y.2d 769, 772, 358 N.E.2d

874, 876-877 (1976); Matter of Temkin vy.

Karagheuzoff, 34 N.Y.2d 324, 328-329, 313

N.E.2d 770, 772 (1974); Landmark Colony at

Oyster Bay v. Board of Supervisors, 113

A.D.2d 741, 743-744, 493 N.Y.S.2d 340, 343

(2d Dept., 1985); Lefrak Forest Hills Corp.

v. Galvin, 40 A.D.2d 21i, 218-219, 338

N.Y.S.2d 932, 939 (2d Dept., 1972), aff'd,

32 N.Y.2d 796, 298 N.E.2d 685, cert.

denied, 414 U.S. 1004 (1973). Parkview has

made neither showing in the instant case.

Indeed, it is for this reason that Parkview's

(Footnote Continued)

-43-

Parkview essentially asks this Court to

require New York State to adopt a common

law estoppel rule covering instances where

an agency has reached a plausible, but

erroneous ‘interpretation of the law. See

Juris. St., pp. 24-26. But New York's

Court of Appeals has declined to embrace

this rule and no dommettbuithientd impropriety

can thus arise. More importantly, this case

is not an instance that may properly be

regarded as one of a governmental agency's

reasonable, though erroneous interpretation

of ioe. No infirmity results from _ the

(Footnote Continued)

citations to Dobbins v. City of Los Angeles,

195 U.S. 223 (1904), Wheeler v. City of

Pleasant Grove, 664 F.2d 99 (5th Cir.,

1981), cert. denied, 456 U.S. 973 (1982),

and People v. Miller, 304 N.Y. 105, 106

N.E.2d 34 (1952) are unavailing (Juris. St.,

pp. 23-24). These cases are based on a

vested rights analysis, and Parkview has net

acquired vested rights.

as A true interpretation case is one where a

statute as enacted by the legislature contains

(Footnote Continued)

-44-

FUROR he REP RCO a OCR Rte, 4)

Court of Appeals' refusal to treat the case in

(Footnote Continued)

general terms capable of application on a

case-by-case basis, and gives to an

administrative agency the authority to reach

any of a number of permissible results

through the exercise of its administrative

discretion, so long as that discretion is not

exercised arbitrarily. In such cases,

differential application of the _ statutes

contravenes no indication of legislative will

because the legislative will has not been

immutably fixed. Cox v. Louisiana, 379

U.S. 559, reh. denied, 380 U.S. 926 (1965)

(see Juris. St., p. 26) is such a case,

where the statute prohibited demonstrations

"near" a courthouse, but did not define the

term "near," leaving to police officials the

task of determining on a case-by-case basis

what "near" means. United States v.

Pennsylvania Industrial Chemical Corp., 411

U.S. 655 (1973) ("PICCO") (see Juris. St.,

p. 26) is also such a case, where a statute

had been once interpreted by the Army

Corps of Engineers to allow unpermitted

dumping of deposits that did not impede

navigation. (Indeed, both Cox and PICCO

are criminal cases, making them inapplicable

on this ground in addition to the fact that

they are interpretation cases and the present

one is not.)

The present matter simply does not fit

the reasonable interpretation model. It is

not an instance where the statute sets forth

a general term capable of differential

application on varying facts. The zoning

law prescribes in unambiguous terms and in

(Footnote Continued)

-45-

the manner Parkview suggests.

Nor is Parkview's argument aided by

citation to cases such as Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1 (1976) and

Chevron Oil Co. v. Huson, 404 U.S. 97

(1971) involving the retroactive application

of new legislative, regulatory, or judicial

rules. See Juris. St., pp. 23-24. As

demonstrated, this is not a case in which the

governing rule was changed at all; it was

simply misapplied in error. Moreover,

(Footnote Continued)

all circumstances a 150 foot PI District

boundary on 96th Street and a clear height

limitation within the PI District of the lesser

of 19 stories or 210 feet. There was no

interpretation of the law here at _ all.

Rather, there was clerical error in printing

the codification and a single official's error

in administering the law through _ the

issuance of an invalid ‘building permit.

Thus, even if some constitutional infirmity

could be imputed to the Court of Appeals’

refusal to treat this case as an example of a

reasonable, albeit erroneous interpretation of

law, Parkview cannot plausibly suggest that

this case is an appropriate vehicle for

adopting that rule.

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Qare oR pone

because the PI District boundary has never

been changed, Parkview, unlike one truly

aggrieved by the retroactive application of a

new rule of law, possessed no legally

protected interest capable of defeasance. 14

(2)

Parkview suffers no violation of its due

process rights through the Court of Appeals'

14 Par from being a "fiction," (Juris. St., .

p. 24) the fact that Parkview acquired no

property interest in constructing a 3l-story

building within 150 feet of Park Avenue is a

conclusion dictated by state law. The

Administrative Code expressly conditions the

issuance of a building permit on compliance

with applicable law, and _ authorizes its

revocation if it was issued in error and

conditions are such that it ought not have

been issued. Administrative Code §§ 27-191

and 27-197. As shown, supra, pp. 27 - 29,

the permit was invalid when issued and

cannot under New York law confer any

vested right to build. This is in stark

contrast to the recharacterization of

state-recognized rights found bogus in

Cleveland Board of Education v. Loudermill,

470 U.S. 532, 539 n.5 (1985) and Webb's

Fabulous Pharmacies, Inc. v. Beckwith, 449

U.S. 155, 164 (1980). See also Memphis

Light, Gas and Water Division v. Craft, 436

U.S. 1, 11-12 (1978).

-47-

seem

application to the facts of this case of the

general rule foreclosing estoppel against the

City. To the extent that Parkview takes

issue with the Court of Appeals’ purported

refusal to adjudicate this claim (Juris. St.,

pp. 27-29), its contention should’ be

rejected. /° The so-called enormity of

Parkview's "forfeiture" (Juris. St., p. 26) is

incapable of determination before the

variance proceeding is completed. In this

respect, Parkview's due process’ claim

suffers from an_ infirmity similar to that

concededly applicable to its takings claim - it

is not ripe. See Pennell v. City of San

Jose, ___ U.S. __, 108 S. Ct. 849, 857 n.5

(1988); Hodel _v. Indiana, 452 U.S. 314,

1s We suggest that the due _ process

implications of application of the estoppel

rule were not properly presented to the

Court of Appeals. See supra at 41 n.11.

To the extent that they were, the due

process claim is as premature as the takings

claim and is otherwise meritless.

-48-

335-336 (1981); Hodel v. Virginia Surface

Mining and Reclamation Association, Inc.,

452 U.S. 264, 304 (1981). Cf. Williamson

County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172, 191-192 n.12,

199-200 (1985). Compare Village of Euclid

v. Ambler Realty Co., 272 U.S. 365, 386

(1926). Parkview raises no facial

constitutional challenge in this case, and this

record does not present any tangible

evidence of the consequences to Parkview of

the permit revocation at issue. No one is in

a position to know Parkview's ultimate harm

until it is determined whether the offending

12 stories will be legalized by a variance.

Parkview's due process claim is prematurely

asserted.

Moreover, on this record, Parkview's

assertions of actual, reasonable, and good

faith reliance on map 6b are _ contested.

These are facts peculiarly within Parkview's

knowledge but which, becayse of the

-49-

applicability of the general estoppel rule and

the dispositions below, were not

developed. *® It is in the upcoming variance

process that a full factual record will be

made in accordance with sections 666 and 668

of the New York City Charter and §72-21 of

the Zoning Resolution. Among the open

issues the BSA will consider is whether "...

the practical difficulties or unnecessary

hardship claimed as a ground for a variance

have not been created by the owner."

Zoning pasiiiities §72-21(d). In the event

that Parkview's application for a variance is

denied, it can challenge that determination in

the state courts. See, e.g, Matter of Cowan

v. Kern, 41 N.Y.2d 591, 363 N.E.2d 305

({977). This record simply affords no basis

for adjudicating Parkview's claim to have

16 See supra at 8 n.1.

-50-

been deprived of property without due

process of law.

In any event, there is nothing so

shocking or offensive to civilized notions of

decency in the Court of Appeals' application

of the estoppel rule to the facts of this case

so as to warrant invalidation of the

revocation on constitutional grounds. Given

that Parkview's permit was issued without

statutory authority, there was. nothing

arbitrary about its revocation. Parkview's

reliance on Moore v. City of East Cleveland,

431 U.S. 494 (1977) and _ Rochin vy.

California, 342 U.S. 165 (1952) for the.

proposition that the City's action

"contravenes a basic sense of justice" (see

Juris. St., p. 26) 14 is misplaced. Moore

- We suggest that the issues of

discrimination treated in Examining Board of

Engineers v. Flores de Otero, 426 U.S. 572,

(1976), Schneider _ v. Rusk, 377 U.S. 163

(Footnote Continued)

-51-

and Rochin gave content to the substantive

due process guarantee of liberty in

circumstances in which it was threatened by

"

regulation slicing deeply into the family

itself," possessing only a "tenuous relation"

to the government's otherwise legitimate

objectives (Moore, 431 U.S. at 498, 500) and

“gt too close to the

by police techniques

rack and the screw to permit of

constitutional differentiation” (Rochin, 342

Ue. @ ifé}. Parkview has no_- such

cognizable interest at stake and cannot be

found to have been subjected to

governmental action so arbitrary or

unreasonable on these facts as to shock the

conscience.

Although this record leaves unexplored

the issues of Parkview's actual, reasonable,

(Footnote Continued)

(1964), and Bolling v. Sharpe, 347 U.S. 497

(1954) (Juris. St., p. 26) have no relevance

to the instant case.

-52-

and justifiable reliance on zoning map 6b, it

nonetheless contains certain undisputed facts

suggesting that Parkview's reliance on the

codification, without further inquiry, was

unreasonable. Zoning map 6b_ reflected

shading indicating a longer PI _ District

boundary on 96th Street than on streets to

the south. Both Parkview's principal and

the architect it employed are experienced,

and there has never been any question but

that Parkview's property was subject to the

150 foot boundary at the time of its purchase

in 1982. Indeed, when purchasing a piece

of property, one might not uncommonly

inquire as to its development potential. In

these circumstances, Parkview's reliance on

' the 6b zoning map, without further inquiry

as to the boundary's actual location, may not

have been. reasonable. The Court of

Appeals' ruling sustaining the permit

revocation and refusing to estop the City

from strict enforcement of the law thus does

-53-

not sanction governmental action that on

these facts even remotely approaches that

which is so offensive to a basic sense of

justice as to warrant’ invalidation on

substantive due process grounds. *

18 -barkview misses the point by claiming

that due process prevents it from being

charged with knowledge of the boundary's

actual location. See Juris. St., pp. 17-20.

First, the cases it relies on for this

proposition concern the _ application’ to

cognizable legal interests of statutes

expressly directing their extinguishment

under certain conditions. See Hodel v.

Irving, U.S. , 107 S. Ct. 2076

(1987); United States v. Locke, 471 U.S. 84

(1985); Texaco, Inc. v. Short, 454 U.S. 516

(1982). They have no application to the

present matter where a_ long-standing

statutory prescription is applied to revoke a

permit that should not have been issued in

the first instance. Moreover, the Court of

Appeals' suggestion that a good faith

inquirer's reasonable diligence would have

disclosed the boundary's true location cannot

be read as anything more than a statement

that, based on the uncontested facts in this

‘record, it is not unreasonable to have

required Parkview to inquire further and so

to charge it with constructive notice of what

the law has _ provided since 1973. See

Federal Crop Insurance Corp. v. Merrill, 332

U.S. 380, 384-385 (1947). That the

(Footnote Continued)

-54-

Estoppel is ultimately an equitable |

doctrine. See Heckler v. Community Health

Services of Crawford County, Inc., 467 U.S.

51, 59 (1984). Yet the facts as presented

on this record do _ not’ support its

application. On the one hand, Parkview

continued construction above the 19th story

during the pendency of its appeal to the

BSA after having been advised by the City's

top legal advisor of the consequences of an

unsuccessful appeal. Indeed, Parkview did

not file its variance application with the BSA

until May, 1987, nearly ten months after its

permit was revoked.

On the other hand, there has never

been a suggestion in this case that the

(Footnote Continued)

published Zoning Resolution has_ been

designed as a convenience to members of the

development community does not relieve them

of the responsibility of ascertaining what the

law in no uncertain terms specifies especially

where, as here, the facts suggest further

inquiry to have been in order.

-55-

|

Department of Buildings has proceeded in

anything but good faith and at the first

known opportunity to correct the

consequences of municipal error in order to

insure the integrity of the City's zoning law.

The critical municipal planning and

development objectives that underlie’ the

City's ~ overall zoning scheme would be

severely undercut by a judicially sanctioned

overbuilding of Parkview's property. The

zoning law reflects a uniform system of

regulation and control and includes provision

for varying the strict application of the law

upon satisfaction of the required showings.

See Zoning Resolution §72-21. It is essential

that developers adhere to the overall scheme

of regulation and control set forth by the

zoning law lest the public interest in orderly

and consistent development be utterly

undermined. Moreover, the grant of relief

in this case would remove any incentive for

developers and their architects to take a

-56-

responsible part in the permit § approval

process by sending a clear signal that those

who do a_e slipshod job of certifying

compliance with the zoning laws, and who

manage to get away with it in the approval

process, may benefit from the mutual

mistake.

Parkview in effect attempts to

constitutionalize its estoppel claim. But a

substantial federal question cannot be

created by giving a constitutional gloss to

routine zoning disputes that can be and have

in this case been adequately addressed by

state courts. Hynes v. Pasco County,

Florida, 801 F.2d 1269, 1270 (llth Cir.,

1986) ; Creative Environments, Inc. Vv.

Estabrook, 680 F.2d 822, 831-834 (1st Cir.),

cert. denied, 459 U.S. 989 (1982); Studen

v. Beebe, 588 F.2d 560, 566 (6th Cir.,

1978). See also Pace Resources, Inc. v.

Shrewsbury Township, 808 F.2d 1023,

1035-1036 (3d Cir.), cert. denied, __ U.S.

-57-

__, 107 S. Ct. 2482 (1987); Yale Auto

Parts, Inc. v. Johnson, 758 F.2d 54, 58-59

(2d Cir., 1985); South Gwinnett Venture v.

Pruitt, 491 F.2d 5, 7 (5th Cir.) (en banc),

cert. denied, 419 U.S. 837 (1974). Thus,

this case presents no_ substantial federal

question.

-58-

PROFIT. tet

CONCLUSION

THE APPEAL SHOULD BE

DISMISSED FOR WANT OF

JURISDICTION. ALTERNATIVELY,

THE ORDER APPEALED FROM

SHOULD BE AFFIRMED. IF THE

JURISDICTIONAL STATEMENT IS

TREATED AS A PETITION FOR A

WRIT OF CERTIORARI, THE

PETITION SHOULD BE DENIED.

Respectfully submitted,

PETER L. ZIMROTH,

Corporation Counsel of

the City of New York,

Attorney for Municipal

Appellees.

- LEONARD J. KOERNER,*

GABRIEL TAUSSIG,

PAMELA SEIDER DOLGOW,

ELIZABETH S. NATRELLA,

PHYLLIS ARNOLD,

of Counsel.

*Attorney of Record

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