Petition for Writ of Certiorari — FBK Realty Corp. v. Crotty

No. JOSEQH F. SPA

IN THE

Supreme Court of the United States

October Term, 1986

FBK REALTY CORP.,

Petitioner,

against

PAUL A. CROTTY, Commissioner of the Department of

Housing Preservation and Development of the City of New York,

Respondent.

Petition for a Writ of Certiorari to the Supreme Court of

the State of New York, Appellate Division, First De-

partment

STEVEN R. LAPIDUS

ABRAMS LERNER KISSELOFF

KISSIN & LAPIDUS, P.C.

1350 Avenue of the Americas

New York, NY 10019

(212) 581-8600

Counsel of Record and Counsel for

Petitioner

Of Counsel:

STANFORD M. SINGER

ABRAMS LERNER KISSELOFF

KISSIN & LAPIDUS, P.C.

1350 Avenue of the Americas

New York, NY 10019

(212) 581-8600

January 7, 1987

OE ce ae

SS

Question Presented

Is a state zoning provision facially unconstitutional as

constituting a taking of property without compensation

or a deprivation of property without due process of law

where it precludes issuance of any Alteration Permit for a

given property upon finding of past “‘harassment’”’ of

residential tenants by the owner of the property (1) where

. an Alteration Permit is a prerequisite for any substantial

repair or improvement of the property; (2) where ‘‘owner”’

is defined as anyone in the prior chain of title, in whose

acts the present owner may not have participated and of

which he may have neither actual nor constructive knowl-

edge; and (3) where the prohibition against issuance of an

Alteration Permit runs with the property forever, rendering

it unsaleable?

il

List of Parties

The parties to the proceedings below were the petitioner

FBK Realty Corp., a corporation of the State of New York,

and Anthony Gliedman, former Commissioner of the

Department of Housing Preservation and Development of

the City of New York. The present respondent is Mr.

Gliedman’s successor as Commissioner, Paul A. Crotty.

Petitioner FBK Realty Corp. has no parent companies,

subsidiaries, or affiliates to list pursuant to Rule 28.!.

Ss

Pi

ili

TABLE OF CONTENTS

elec ee uenceaesescces

EEE SE Se

OR

EE ee

Ne | a wecadecece

Reasons for Granting the Writ ...................

Zoning Resolution Section 96-109 is Unconstitu-

tional on Its Face as Effecting a Taking of Property

Without Compensation or a Deprivation of Property

Weatoust Bree Process OF Law ........ccccsccsccees

Tene Te a uvdvecvaseces

ll

10

10

19

la

iV

Table of Authorities

CASES

Belle Harbor Realty Corp. v. Kern, 35 N.Y.2d 507,

564 N.Y.S.2d 698, 323 N.E.2d 697 (1974) ......... 14, 16

Blackledge v. Perry, 417 U.S. 21 (1974)......... mes |

Blum v. Bacon, 457 U.S. 132 (1982)............006- 13

FEC v. Democratic Senatorial Campaign Committee,

S08 SLs Be CET 056 55 des ha oe eee N Ne Keewes 13

Gary v. Spires, 473 F.Supp. 878 (D.S.C. 1979)....... 1]

Hastings v. Judicial Conference of the United States,

ioe 8 Fikes 2 eer eee 10

Hortonville Joint School Dist. No. 1 v. Hortonville

Education Ass’n., 426 U.S. 482 (1976)............ 10

Hurley v. Van Lare, 380 F.Supp. 167 (S.D.N.Y.

1974), vacated 421 U.S. 358 (1975) .. 0c cccceveccss 15

Journigan v. Duffy, 552 F.2d 283 (9th Cir. 1977) .... 11-12

Menna v. New York, 423 U.S. 61 (1975) ............ 11

Merton v. Abbott Laboratories, 595 F.Supp. 834

EROS nar iivke keee en enies ebabe samen 1]

Pennsylvania Coal Co. v. McMahon, 260 U.S. 393

CUED x Ne kGeSwaks aks a cade eeae miner aeeeeieae 18

Schafer v. City of New Orleans, 743 F.2d 1086 (5th

Ge EE Sia ee ents sccnbls cc becker eabwiaweenee 16

Schweiker v. McClure, 456 U.S. 188 (1982) ......... 10

Ex Parte Stebold, 100 U.S. 371 (1879) .....ccccccees 12

Smoke Rise, Inc. v. Washington Surburban San.

Comm’n, 400 F.Supp. 1369 (D. Md. 1975)........ 16, 18

V

TABLE OF AUTHORITIES

Steel Hill Development, Inc. v. Town of Sanbornton,

SED Fee Fe CAE Cae. FGF e) 0 bccn kandsncevaenes 17

Urbanizadora Versalles, Inc. v. Rivera Rios, 70) F.2d

Se CONE Ce SPE) 8 a b.accrvecbaaeeeeseentescnces 17

Utica Packing Co. v. Block, 781 F.2d 71 (6th Cir.

| rer ere rere eT er re ee 10

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) = 13

Village of Euclid, Ohio v. Ambler Realty Co., 272

C7 D. FeO Ses Rk vaca eees eb cies hurd eaaseees 13, 14

Withrow v. Larkin, 421 U.S. 35 (1975) ......eeeeees 10

Young v. American Mini Theatres, Inc., 427 U.S. 50

to | ee ere Pree errr Tey er ree 13

STATUTES

Section 7801, et seq., New York Civil Practice Law &

ee rE re Per eo ny ery ec 9

Section 96-00, New York City Zoning Resolution ...

Section 96-109, New York City Zoning Resolution

nhved ies dakks 5 Oeesk eeu Re kee eee 2, passim

CONSTITUTIONAL PROVISIONS

Fifth Amendment, Constitution of the United States

MT TROT SOIT eC C eee rer ee 9, passim

Fourteenth Amendment, Constitution of the United

7. PPE Teere rT yr nT. Prey ere re ree 9, passim

In THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

FBK REALTY CORP.

Petitioner,

v.

PAUL A. CROTTY, Commissioner of the Department

of Housing Preservation and Development of the City

of New York,

Respondent.

The petitioner FBK Realty Corp. respectfully prays that

a writ of certiorari issue to review the judgment of the

Supreme Court of the State of New York, Appellate

Division, First Department, entered in this proceeding,

originally captioned FBK Realty Corp., Petitioner v. An-

thony Gliedman, Commissioner, etc., Respondent, on

December 3, 1985.

Opinions Below

The opinion and decision of the Department of Housing

Preservation and Development of the City of New York is

reprinted in the appendix hereto, p. la, infra. That

opinion was confirmed, without opinion, on direct review

pursuant to Section 7801, et seq. of the New York Civil

Practice Law and Rules (‘“C.P.L.R.’’) by the New York

Supreme Court, Appellate Division, First Department

(‘Appellate Division”), whose judgment is reprinted in

the appendix hereto, p. 66a, infra.

The within petitioner appealed directly, as of right, to

the Court of Appeals of the State of New York, which

dismissed the appeal. Successive motions for leave to

appeal to the Court of Appeals were denied, respectively,

2

by the Appellate Division and the Court of Appeals itself.

Such dismissal and denials are reprinted in the appendix

hereto, pp. 70a, 82a, and 92a, infra, respectively.

Jurisdiction

Jurisdiction of this Court to review the judgment of the

Appellate Division is invoked under 28 U.S.C. Section

1257(3), which provides for certiorari to review state statutes

as repugnant to the Constitution of the United States.

Statute Involved

Section 96-109 of the Zoning Resolution of the City of

New York:

Prior to the issuance of an alteration permit by

the Department of Buildings for an alteration

other than an incidental alteration for a building

containing residential uses within the Preserva-

tion Area, the Administrator of Housing and

Development shall certify to the Department of

Buildings:

(a) That prior to evicting or otherwise terminat-

ing the occupancy of any tenant preparatory to

alteration, the owner shall have notified the

Administrator of Housing and Development of

his intention to alter the building;

(b) That the eviction and relocation practices

followed by the owner of the building satisfy all

applicable legal requirements and that no harass-

ment has occurred.

(Italics in original as denoting terms defined elsewhere in

Zoning Resolution.)

3

Statement of the Case

Petitioner FBK Realty Corp., a New York corporation

(“FBK”), contracted, on or about August 30, 1983, to

purchase the land and building known as and located at

468 West 47th Street, New York, New York (the “‘Prem-

ises’”). The seller of the Premises was Nirco Investors

Corp. FBK had and has no business or other connection

whatsoever with Nirco or with any prior owner of the

Premises, except that of purchaser to seller. A title search

showed that the Premises had been free of complaints or

findings of harassment of residential tenants of the Prem-

ises.

In view of the location of the Premises in the ‘Special

Clinton District’? on the west side of Manhattan, as

defined in Section 96-00, et seq. of the Zoning Resolution

of the City of New York, an area of Manhattan previously

known as “Hell’s Kitchen,’’ FBK applied to the Depart-

ment of Housing Preservation & Development of the City

of New York (“HPD”), of which the respondent Paul A.

Crotty is the Commissioner, pursuant to Section 96-109 of

the Zoning Resolution, for a Certificate of No Harassment,

a mandatory prerequisite for issuance of an Alteration

Permit by the New York City Department of Buildings.

The Record in this matter shows that HPD interprets

Section 96-109 such that an owner of property located in

the Special Clinton District must prove that no “‘harass-

ment” of residential tenants has taken place at the property

at any time, by himself or by anyone else. HPD’s position

is that it makes no difference that the owner himself had

nothing to do with any acts of alleged “harassment,” or

that he is unconnected with any prior alleged acts of

“harassment” of any prior owner, or that he has no real or

even constructive notice of such prior acts, if any. Indeed,

an owner’s stated and unequivocal intention to improve

the property for the benefit of present and prospective

4

residential tenants, and his efforts and expenditures in

that regard, are deemed equally irrelevant.

Under Section 96-109, if “harassment” has taken place

at the property, at any time, by anyone, regardless of the

lack of connection to the present owner, a Certificate of

No Harassmant must be refused. Without such certificate

the owner can never receive an Alteration Permit with

respect to his property. He must own the property with no

legal ability to improve it, or even to upgrade essential

systems for the benefit of the residential tenants. This

situation persists, as a matter of law, forever. Since Section

96-109 thus requires that, in perpetuity, no improvement

can be made, the property has, as a practical matter, no

resale value.

In May, 1984, notwithstanding the fact that FBK had

never evicted or relocated tenants, and notwithstanding

FBK’s guarantee that tenants have the unquaitified right to

remain as rent-controlled tenants under local law for as

long as they wished, HPD issued a determination of

“reasonable cause” to believe that “harassment” had oc-

curred at the Premises. A hearing was scheduled, therefore,

to resolve the listed allegations of harassment as set forth

in a “Notice of Hearing” dated July 5, 1984.

On July 18, 1984, a hearing was held before the office of

Administrative Trials and Hearings of the City of New

York, Joel I. Sosinsky, HPD’s Administrative Law Judge,

presiding. HPD produced only one witness concerning

acts of alleged harassment, a tenant whose testimony

showed that certain prior owners of the Premises had

failed or had been unable to provide certain services and

that, basically, over the last 15 years, the Premises had

deteriorated along with the entire surrounding neighbor-

hood.

HPD’s witness described how the Premises had allegedly

been permitted to deteriorate during the period beginning

5

in 1976, when the Premises was substantially damaged by

a fire. At that time the firefighters broke into the witness’

apartment, removed her window, chopped up her door

and removed the skylight from the hallway. Those condi-

tions were repaired in some four to six weeks. The roof

was repaired later. The alleged failures to provide building

services or maintenance referred to the period between

1976 and 1983, prior to the purchase of the Premises by the

Petitioner.

Nirco Investors Corp. purchased the Building in July

1983. Shortly after Nirco took title, new doors and locks

were installed on apartments, as were a series of locks for

the front door of the Building which, unfortunately,

proved unresistant to intruders, due to the fact that the

Premises are across the street from a park inhabited by

drug addicts. New windows were installed and the base-

ment cleaned.

In October 1983 the Premises were purchased from

Nirco by FBK. HPD’s witness contrasted favorably the

conditions in the Premises subsequent to FBK’s ownership

with those preceding, by testifying that the new owners (1)

put a new lock on the vestibule making it necessary to

have a key to gain access to the Building; (2) began

replastering her apartment (3) provided a new refrigerator,

toilet and completely new bathroom; (4) patched the roof;

and (5) had replaced hallway lightbulbs with working

fluorescent lights. The tenant denied that any of FBK’s

principals had made any statements or done any acts to

encourage her to vacate her apartment.

Ted Reed, Jr., an architectural consultant who testified

on FBK’s behalf, testified that the Premises, located in a

physically run-down area, surrounded by buildings requir-

ing alteration and updating, was built around the turn of

the century and that the present antiquated DC electrical

system had to be replaced, along with the plumbing,

which was described as being beyond repair.

6

Mr. Reed identified FBK’s building plans and testified

that the plans proposed new partitions, plumbing, heating

and electrical systems and new double-pane windows.

Such renovation was intended to work ‘‘around” the two

occupied apartments, so that the present tenants would

not have to vacate.

Mr. Reed described the repair of the heating system as

resulting in a monumental “Catch 22.” One of the “‘harass-

ment”’ allegations against FBK was the failure to provide

adequate heat and hot water. Correction of this probiem

necessarily involved replacement of the boiler. Such replace-

ment required an Alteration Permit, however, which could

not issue because of the intervening allegations of “‘harass-

ment.” Faced with such a circular, insoluble dilemma,

FBK went ahead and did what was necessary, by installing

a boiler without permit. The Premises was thereupon

cited with a Building Code violation for illegal installation

of the new boiler, i.e., without an Alteration Permit!

Mr. Reed testified that, if no permit could be issued

with respect to re-vamping the electrical and plumbing

systems, and the Premises continued to deteriorate and

increase in dangerousness, the same “Catch 22” would

necessarily apply to any efforts to renovate such systems.

Mr. James Hefelfinger, FBK’s President, testified that,

immediately upon closing title to the Premises, FBK had

changed the front door lock cy!inder and gave new keys to

the tenants and a new electrical hot water system was

installed. With respect to the apartment occupied by

HPD’s sole witness, various emergency repairs were done

quickly, including replacement of an old watercioset with

a modern toilet, upgrading of the electrical circuitry,

installation of a new refrigerator and the installation of

new apartment door locks and “‘saddle,”’ along with

repairs to the roof of the apartment, and repainting and

replastering of the apartment. All of these acts were

obviously inconsistent with an intention on the owners’

part to harass the tenant into vacating the apartment.

sow LONE e ncn Nt 2 HD

7

It was and is FBK’s intention to rehabilitate the Building

and renovate vacant apartments and common areas. Mr.

Hefelfinger explained that this would take some time in

view of the administrative roadblock contained in Zoning

Resolution Section 96-109.

What made the roadblock particularly egregious was

that neither FBK nor any of its principals had ever

committed or attempted any acts which would indicate to

anyone that they wanted the present tenants of the building

to vacate. On behalf of FBK, Mr. Hefelfinger guaranteed

the tenants the right to remain as rent-controlled tenants

as long as they wished, and he did so on the record at the

hearing.

Mr. Hefelfinger observed that the immediate area con-

sisted of housing stock predating the turn of the century

and a large population of vagrants and drug addicts.

Neither the owners’ principals nor employees had seen

any intruders inside the Building, or, indeed, anyone other

than HPD’s tenant witness. When the owners had been

told of derelict problems, they have called the police and

have urged the tenants to do the same. Following some

on-site inspections, FBK had tinned up windows in vacant

units adjacent to fire escapes, and resecured units showing

evidence of break-ins, and had done everything in their

power to keep squatters out of the Building.

The HPD hearing officer promised counsel to render a

decision not later than September 14, 1984. When no

decision had been rendered as of that date, FBK’s counsel

telephoned Mr. Sosinsky to inquire as to when a decision

could be expected. At that time counsel was informed that,

two weeks before, the proposed decision was submitted to

Yasmin Duncan, Esq., the attorney who had prosecuted

the case on behalf of HPD, and that, under instruction

from the Deputy Commissioner of HPD, Mr. Sosinsky was

directed to submit his decision to HPD Deputy Commis-

sioner Felstein for her review before its issuance. Counsel’s

complaint, noting that any semblance of impartiality by

8

the respondent in this process had thus been entirely

vitiated, went unanswered by the respondent.

Adopting proposed findings of fact and conclusions of

law submitted by Ms. Duncan, Mr. Sosinsky determined

that FBK’s acts and intentions were irrelevant and that any

act which might be construed as “harassment” of tenants

by any prior owner would justify the effect of Zoning

Resolution Section 96-109, i.e., precluding the issuance of

any Alteration Permit with respect to the Premises forever.

(p. 3a, et seq.)

Mr. Sosinsky inferred from the fact that many tenants

vacated their apartments during the ten years of prior owner-

ship, and with no other evidence, that such proved the

owner’s intent to empty the building of residential tenants.

Despite the evidence that police were ineffective in such

matters, and despite testimony that front door locks were

continually being broken and replaced, and despite the

evidence showing that FBK had obtained the removal of

some of the squatters, and solely on the basis of FBK’s

inability to secure the main entrance on a continuous

basis and to keep the building entirely free from squatters

and other breakers-in, Mr. Sosinsky inferred that FBK was

“deliberately” attempting to force the remaining tenants

to vacate. (Id.)

Mr. Sosinsky also made reference in his determination

to alleged instances of lack of provision of heat and

insufficient cold water and lack of garbage collection at

unspecified times since the time FBK had owned the

Premises, without noting that these allegations were not

even mentioned in the testimony by the sole tenant called

to testify. Mr. Sosinsky claimed as dispositive the alleged

fact, also not set forth in the testimony, that it would be in

FBK’s pecuniary interest to have the remaining tenants

vacate their apartments.

aint oN hia

te Late aah Mlle» Jn ek

9

Mr. Sosinsky concluded that HPD had proved by pre-

ponderance of the evidence that:

a) The eviction and relocation practices of the

owner did not satisfy all applicable legal require-

ments; and

b) that harassment of tenants had occurred in the

past and continues to occur at the subject prem-

ises.

Based on Mr. Sosinsky’s findings, on October 12, 1984, the

respondent denied FBK’s application for a Certificate of

No Harassment.

FBK thereupon initiated a proceeding under C.P.L.R.

Article 78 in the nature of certiorari and mandamus to

annul the HPD determination. Before Special Term of

New York State Supreme Court, New York County, FBK

argued, inter alia, that, Zoning Resolution Section 96-109

is unconstitutional for the following reasons: (1) the

statute precludes the issuance of any Alteration Permit as

to any building in the Special Clinton District where there

is found “harassment” or “unlawful eviction and reloca-

tion practices,” by any owner at any time in the past,

which terms are undefined, regardless of the fact the

present owner or applicant may have had no connection

with, or real or even constructive notice of, such “harass-

ment,” or “unlawful eviction and relocation practices” (2)

the statute effectively precludes any development or sale of

such property forever, and thus effects a taking of property

without compensation or a deprivation of property with-

out due process of law, in violation of the Constitution of

the State of New York and the Fifth and Fourteenth

Amendments to the Constitution of the United States.

Petitioner demanded that judgment be entered by Special

Term in favor of FBK and against the respondent, declar-

ing that Section 96-109 of the Zoning Resolution of the

City of New York is unconstitutional on its face. _

10

Special Term transferred the matter to the Appellate

Division, First Department, of the New York State Supreme

Court without reaching the merits. The Appellate Division

confirmed the respondent’s determination without opinion

(p. 66a). An appeal to the New York State Court of

Appeals, taken on the constitutional issue was dismissed

without costs, sua sponte (p. 70a). A motion for leave to

appeal was denied by the Appellate Division (p. 82a), and

a renewed motion was denied by the Court of Appeals

itself (p. 92a).

REASON FOR GRANTING THE WRIT

Zoning Resolution Section 96-109 is Unconstitu-

tional on its Face as Effecting a Taking of Property

Without Compensation or a Deprivation of Property

Without Due Process of Law.

For purposes of this Petition we will assume, for pur-

poses of argument, the factual correctness of HPD’s find-

ing that FBK had “harassed’’ tenants and committed

unlawful eviction and relocation practices, though the

record shows the contrary and though the administrative

procedure which led to that finding is constitutionally

tainted as well.*

* In the New York courts FBK argued that the expression

“kangaroo court” was not altogether inapplicable to the admin-

istrative proceedings in issue. We recognize this Court’s pro-

nouncement in Withrow v. Larkin, 421 U.S. 35, 47-48 (1975)

that there is a presumption of non-bias and no per se denial of

procedural due process in combining prosecutorial and judicial

functions in one agency. Nonetheless that presumption may be

rebutted, Schweiker v. McClure, 456 U.S. 188, 195-196 (1982).

The record in this matter shows, essentially, that the Hearing

Officer submitted his determination to the HPD prosecutor for

approval before issuing it. There can be no greater showing of

actual bias. See Hastings v. Judicial Conference of United

States, 770 F.2d 1093, 1100 (D.C. Cir. 1985). At the very least, the

procedure vitiated the appearance of fairness. Utica Packing Co.

v. Block, 781 F.2d 71, 77 (6th Cir. 1986). See also Stewart, |

dissenting, in Hortonville Joint School Dist. No. 1 v. Horton.

ville Education Ass’n, 426 U.S. 482, 497 (1976).

Misti si eewcsrs

11

A. Threshold issues

1. Standing to Challenge Vicarious Liability For Acts of

Prior Owners (The Finding That Petitioner Had Itself

“Harassed” Tenants)

There are two threshold issues in this Petition. The first

is one of standing, in anticipation of the Respondent's

argument challenging FBK’s standing to raise the issue of

vicarious liability.

In the various applications for review by the New York

Court of Appeals, and presumably in this Court as well,

the respondent will argue that the “harassment’’ finding

against FBK vitiates review by this Court of Section 96-

109, insofar as we are concerned with an owner’s vicarious

liability for acts of unrelated predecessors in title. Respond-

ent will argue that, since the Petitioner itself “‘harassed’’

tenants (whatever that means), then that issue is irrelevant

and the Petitioner lacks standing to raise it.

On the contrary, if, under a statute, a present property

owner must suffer a perpetual inability to improve his

property, based on alleged acts of predecessors in title in

whose acts he did not participate, and of whose acts he has

neither real nor constructive knowledge at the time he has

acquired the property, the statute is facially unconstitu-

tional. If the statute is facially unconstitutional, then it is

void ab initio and creates neither rights nor disabilities in

the first instance, and is to be treated as if it never existed.

Merton v. Abbott Laboratories, 595 F.Supp. 834 (D.N.H.

1984); Gary v. Spires, 473 F.Supp. 878 (D.S.C. 1979).

These circumstances are analogizable to the rule per-

mitting federal habeas corpus, despite an intervening

guilty plea. Citing this Court’s opinion in Blackledge v.

Perry, 417 U.S. 21, 30 (1974), as explained in Menna v.

New York, 423 U.S. 61, 62 (1975), the U.S. Court of

Appeals for the Ninth Circuit held, in Journigan v. Duffy,

552 F.2d 283 (9 Cir. 1977):

12

Even if the guilty plea establishes as a factual

matter that [the petitioner] did the acts charged,

a successful constitutional attack on the statute

violated by those acts would undermine the foun-

dation of the criminal prosecution, making those

acts noncriminal. The statute, if unconstitutional,

would be void and the conviction a nullity ab

initio. As the Court explained in Ex parte Siebold,

110 U.S. 371, 376-77 [1879]:

[The constitutionality of the statute] affects the

foundation of the whole proceedings. An un-

constitutional law is void, and is as no law. An

offense created by it is not merely erroneous, but

is illegal and void, and cannot be a legal cause of

imprisonment.

For purposes of this case, if Section 96-109 is void as

providing for vicarious liability for acts of prior owners,

then it is as if Section 96-109 was never enacted: Petitioner

would be entitled to an Alteration Permit on the same

basis as any other applicant, even assuming that the FBK

commitied acts of ‘“‘harassment,’”’ since such would not

have required a Certificate of No Harassment in the first

instance.

In any event, the issues having to do with the prohibition

against improvements in perpetuity are not affected by an

assumption, ad arguendo, of the within FBK’s personal

culpability for “‘harassment.”’

2. Facial Unconstitutionality versus

Unconstitutional Application

In the New York State courts we argued, in the alterna-

tive, that Section 96-109 was unconstitutional as applied

by HPD. Since, in the text of the statute, the word

‘“owner’’ does not necessarily refer to any and all prior

owners for “‘harassment”’ purposes, we argued that HPD’s

administrative interpretation of the statute, as necessarily

making such reference, was unconstitutional.

A Le A a 0 oad bie Carles hae OR

PR a dahaeycrany

13

Given the present procedural posture of the matter,

however, and particularly in the absence of any other

extrinsic aids to interpretation, we must assume the validity

of HPD’s interpretation, and that the legislative body

which enacted the provision intended it to apply to acts of

unrelated prior owners. HPD is, after all, the agency

charged with administration of the statute. Blum v. Bacon,

457 U.S. 132 (1982); FEC v. Democratic Senatorial Cam-

paign Committee, 454 U.S. 27 (1981). HPD having duly

interpreted Section 96-109 such that “owner’’ refers to

any and al} owners in the chain of title, we are put in the

position of arguing that the statute is facially unconstitu-

tional.

B. No Reasonable Relationship to Valid

Governmental Purpose

When a zoning statute is challenged, on non-procedural

grounds, as violative of the Due Process clause, the question

is whether there is a reasonable connection between it and

promotion of health, comfort, safety and the welfare of

society. Village of Euclid, Ohio v. Ambler Realty Co., 272

U.S. 365 (1926); Young v. American Mini Theatres, Inc.,

427 U.S. 50 (1976); Village of Belle Terre v. Boraas, 416

U.S. 1 (1974).

At paragraph 91 of its Answer in state court (p. 61a),

the respondent has asserted:

Section 96-109 of the Zoning Resolution, pursu-

ant to which Respondent denied Petitioner’s ap-

plication for a certification of no harassment,

thereby barring substantial alteration of the sub-

ject premises, constitutes a reasonable and valid

exercise of the power of the City, for the general

health and welfare, to control the use and develop-

ment of property, and did not effect a taking of

Petitioner’s property without due process of law.

It is beyond question that a municipality may

impose restrictions on the use and development

14

of property for promotion of the general health

and welfare of its populace.

On the contrary, we submit that making an owner re-

sponsible for alleged acts of predecessors in title will not

further the ostensible aims of the legislation. Taken to its

logical conclusion, Section 96-109 is irrational, arbitrary

and that it not reasonably related and applied to some

actual or manifest evil.

As noted below, the permanent nature of the prohibition

imposed by Section 96-109 is unconstitutional in the first

instance. That the prohibition applies even where the

present owner/applicant has committed no acts which

resemble harassment, renders it unconstitutional a fortiori.

How can Section 96-109 be said to have any “rational

basis,”’ if its draconian effects are laid upon those who had

nothing to do with what the section is supposed to

prevent? We submit that no such “rational basis”’ exists.

In Matter of Belle Harbor Realty Corp. v. Kern, 35

N.Y.2d 507, 364 N.Y.S.2d 698, 323 N.E.2d 697 (1974), the

New York Court of appeals established a three-pronged

test of determining the “necessity,” in constitutional terms,

of land use regulation, which is in accord with this

Court’s hoidings in Ambler Realty and its progeny:

To justify an interference with the beneficial

enjoyment of property the municipality must

establish that it has acted in response to a dire

necessity, that its action is reasonably calculated

to alleviate or prevent the crisis condition, and

that it is presently taking steps to rectify the

problem.

35 N.Y.2d at 512 (emphasis added). Since Section 96-109 is

applicable to all applicants, regardless of whether or not

they ever carried out or condoned the prohibited activities,

the rational connection between the law, and the evil it

ostensibly combats, is nonexistent: the alleged wrongdoer

15

has already sold the property and made his profit. The net

result wii! necessarily be abandonment of the property.

Since renovation is contingent on the issuance of an

Alteration Permit, Section 96-109 is itself what prevents

such renovation, and what compels the tenants to live

under the “‘harassing”’ conditions described at the hearing.

Such is both unreasonable and unconstitutional.

C. Conclusive Presumptions

In the state courts Respondent answered the above

argument by observing that, unless the section applies no

matter who committed the alleged harassment, prior owners

who have committed such acts can easily escape the

consequences by simply conveying to nominal purchasers.

Such is pure sophistry. The Respondent’s rationale is

nothing more than a conclusive presumption of nominal

conveyance, and an owner’s connection to prior owners

and collusion in their alleged acts. It is equivalent to

similar conclusive presumptions in which Respondent

indulged, i.e., that failure or inability to provide any

single service or to provide for quiet enjoyment in any

minor particular, establishes an intent to cause tenants to

vacate, or that such can be conclusively inferred from it

being in petitioner’s pecuniary interest to vacate the

building (on which no facts were adduced below).

The Constitution permits no irrebuttable presumptions

where, as here, such are not necessarily true in fact and

where the government has reasonable alternative means of

making the crucial determination. Hurley v. Van Lare,

380 F.Supp. 167 (S.D.N.Y. 1974), vacated on other grounds

421 U.S. 338 (1975). Irrebuttable presumptions are offensive

to the Due Process clause because they effectively deny an

individual the right to challenge the purported factual

basis of a determination adversely affecting his life and

property.

16

D. Indefinite Prohibition

The most egregious facet of Section 96-109 is the in-

definite effect of a finding of past “harassment.” The

prohibition against issuance of an Alteration Permit runs

with the land, precluding substantial improvement or

renovation forever.

To be sure, certain statutory moratoria on certain types

of uses or improvements have been upheld. For example,

in Schafer v. City of New Orleans, 743 F.2d 1086 (5 Cir.

1984), an ordinance precluding fast-food restaurants for a

period not more than eleven months was upheld, with the

following caveat:

[The statute] merely suspends the owners’ ability

to devote their property to a particular use for 10

1/2 months. We express no opinion on the

reasonableness of zoning the property more restric-

tively than is presently permitted. The City has

taken no such action.

(Emphasis added.) In Smoke Rise, Inc. v. Washington

Suburban San. Comm’n., 400 F.Supp. 1369 (D.Md. 1975) a

five-year moratorium on sewer hook-ups was upheld as

not violative of Due Process, as preventing excess discharge

while there was no ability to conduct a proper treatment.

The court observed:

[While local governments may properly impose

a moratorium on development for police power

purposes, such a moratorium must be reasonably

limited as to time.

400 F.Supp. at 1385-1386 (emphasis added).*

* Ironically, the court in Smoke Rise contrasted the factual

situation in that case with that set forth in Belle Harbor Realty

Corp. v. Kerr, 43 A.D.2d 727, 728, 350 N.Y.S.2d 698, 701 (1973),

where a similar moratorium had been voided as violative of Due

Process since it was essentially indefinite.

17

A similar observation was made in Steel Hill Develop-

ment, Inc. v. Town of Sanbornton, 469 F.2d 956 (1st Cir.

1972), where an interim zoning measure, restricting lot

size to a six acre minimum, was upheld as an “interim

stop-gap measure:”’

Were we to adjudicate this as a restriction for all

time, and were the evidence of pressure from

land-deprived and land-seeking outsiders more

real, we might well come to a different conclu-

sion.

469 F.2d at 962 (emphasis added). The First Circuit later

had an opportunity to deal with the other side of the coin

in Urbanizadora Versalles, Inc. v. Rivera Rios, 701 F.2d

993 (Ist Cir. 1983), where a “‘freezing’’ of a property

owner’s land for 14 years by reserving the land for future

public improvements or condemnation (by placing a

proposed highway on the site on the official land map),

but without actually condemning the land, was held to be

an unconstitutional deprivation of property.

In particular, the First Circuit noted in Rivera Rios

that, because of the administrative location of the highway

on the official map, the property had been “rendered

useless for development or sale.’’ 701 F.2d at 996. The

same is true here. Because of the finding of ‘“‘harassment,’’

FBK can neither develop nor sell the subject property,

since the disability to develop runs with the land forever.

In the state courts, the respondent sought to minimize

the drastic effect of Section 96-109 by noting that not all

improvements are precluded. The grossly deteriorated con-

dition of the subject property (and of most of the property

in the so-called ‘“‘Clinton District’) and the documented

and uncontradicted episode involving the necessarily il-

legal installation of the new boiler (p. 6, supra) shows

that such minimization is disingenuous.

18

We submit that the disability goes beyond simple depri-

vation. Whether one views “‘taking”’ as going to the degree

to which one’s use of property is restricted, Pennsylvania

Coal Co. v. McMahon, 260 U.S. 393 (1922), or as attempt-

ing to secure a public benefit (as opposed to preventing a

public harm) Smoke Rise, Inc. v. Washington Suburban

Sanitation Commission, supra, we submit that the effect

of Section 96-109 is nothing less than a taking of property

without compensation.

Despite the Respondent’s efforts, in the courts below,. to

minimize its draconian effects, the simple fact is that,

based on a finding of “harassment,” an owner is precluded

from improving property, even to the extent of curing the

conditions which gave rise to the alleged ‘‘harassment”’ in

the first instance. Since the property is thus rendered

unsaleabie and unimprovable, the result cannot be other

than abandonment and acquisition of the property by the

City. Thus a genuine “‘taking’”’ without compensation is

inevitable. Under the Fifth and Fourteenth Amendments

to the Constitution, this result cannot be countenanced.

19

CONCLUSION

For the above-stated reasons, this petition for

certiorari should be granted. For some arcane rea-

son, the municipality has determined that the so-

called Clinton District retain its “character,” i.e., it

shall remain a foul and decaying slum in perpetuity,

with property owners prohibited by law from curing

the very conditions which the statute is supposed to

remedy.

It is essential that this Court provide guidelines

by determining the question, not adequately an-

swered by the District Courts and the Circuit Courts

of Appeals, as to the magnitude of the nature and

duration of the disability to improve property which

may constitute a taking of property without com-

pensation or a deprivation of property without due

process of law.

The zoning provision in question is an unwarrant-

able interference with property rights in a substan-

tially large area of the nation’s largest city. This

Court should duly declare Section 96-109 unconsti-

tutional and remand the matter to the state courts.

Respectfully submitted,

STEVEN R. Lapripus

ABRAMS LERNER KISSELOFF

Kissin & Lapipus, P.C.

1350 Avenue of the Americas

New York, New York 10019

(212) 581-8600

Counsel of Record and

Of Counsel Counsel for Petitioner

STANFORD M. SINGER

ABRAMS LERNER KISSELOFF

Kissin & Lapipus, P.C.

January 7, 1987