# Motion — Parkview Associates v. City of New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 801

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0783%3A2. Public record. Not legal advice.