Opposition Brief — Kaufman v. City of New York

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~ Supreme Court, U.S. a

| FILED

HY) |

No. 89-1412} MAY 4 1990

IN THE JOSEPH F. SP

SUPREME COURT OF THE pie STATES

OCTOBER TERM, 1989

MELVYN KAUFMAN, 77 WATER STREET, INC., 77

WATER STREET ASSOCIATES, 127 JOHN STREET FEE

ASSOCIATES, 127 JOHN STREET ASSOCIATES, 437

MADISON AVENUE FEE ASSOCIATES, and 437

MADISON AVENUE ASSOCIATES,

Petitioners,

-against-

THE CITY OF NEW YORK, THE ENVIRONMENTAL

CONTROL BOARD OF THE CITY OF NEW YORK,

EDWARD I. KOCH, in his capacity as Mayor of the

City of New York, HARVEY W. SCHULTZ, in his

capacity as Commissioner of the Department of

Environmental Protection, and CHARLES M. SMITH,

JR., in his capacity as Commissioner of the Department

of Building.,

Respondents.

RESPONDENTS' BRIEF IN OPPOSITION TO A

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

VICTOR A. KOVNER,

Corporation Counsel of the

City of New York,

Attorney for Respondents,

100 Church Street,

New York, New York 10007.

(212) 566-4329 or 4338

LEONARD J. KOERNER,*

PAMELA SEIDER DOLGOW,

JULIAN BAZEL,

ELIZABETH S. NATRELLA,

of Counsel.

April 23, 199C

*Attorney of Record

pre - ALIALL RDI AnD

COUNTER-QUESTIONS PRESENTED

1. On this record ard based on

substantial precedent, did petitioners'

complaint, challenging the facial |

constitutionality of the City of New York's

asbestos removal laws, enacted to combat a

serious public health and safety threat, state

a claim for an unconstitutional taking, where

the laws are tied to a voluntary decision by

the building owners to do alteration or

demolition work which disturbs "friable"

asbestos, and where petitioners do not even

allege that they are unable to make a profit,

nonetheless, that they are deprived of any

economically viable use of their property?

2. Does a_ controversy ripe (for

judicial review exist where petitioners,

holders of fee or leasehold interests in three

commercial office buildings who assert claims

of "future” costs and "future" lost rents of

over $40,000,000 in their complaint, have an

available variance process under Local Law

No. 46 of 19887?

on ee

TABLE OF CONTENTS

COUNTER-QUESTIONS

og TTT TTT TET T Tiere i

STATEMENT OF THE CASE ....... 1

The Statutory and Regulatory

Scheme Governing Asbestos

EE. § -—« SSPEARS ORES bectacncs 5

The Litigation History and

Opinions Below ~~ ....... 17

REASONS FOR DENYING THE

WRIT OF CERTIORARI

THE CITY'S ASBESTOS REMOVAL

LAWS AND REGULATIONS ARE A

CONSTITUTIONAL EXERCISE OF

ITS POLICE POWERS AND DO NOT

CONSTITUTE AN UNCONSTITU-

TIONAL "TAKING" OF _ PETI-

TIONERS' PROPERTY. ADDITION-

ALLY, THERE IS AN AVAILABLE

VARIANCE PROCESS, MAKING

THE CLAIM PREMATURE. ........ 23

CARMNSEPPS ete cisecccccecceces 92

iii

TABLE OF AUTHORITIES

Page

Cases:

Agins v. Tiburon,

447 U.S. 255 (1980) __................. 42, 51

Andrus v. Allard,

Gee Was GE CUTER. 6h ccc dicccess 28, 31,

Armstrong v. United States,

364 U.S. 40 (1960) _............ . s. 42

Caban v. Mohammed

8 ek ee fa ereee 9

Califano v. Aznavorian,

A ee. Bi | eee 25

Day-Brite Lighting, Inc. v.

State of Missouri,

_ 2 eS 8: eee 9, 25

Environmental Encapsulating Corp.

v. City of New York, 855 F.2d 48

(2d Cir., 1988), aff'g in part

and rev'g in part, 666 F. Supp.

Bi sk & OS) errs = -

9, 26

F.C.C. v. Florida Power Corp.,

480 U.S. 245 (1987) —s_— ww wees 6, 37

Goldblatt_v. Hempstead,

369 U.S. 390 (1962) i ........ 44

Page

Cases:

Hadacheck vy. Sebastian,

239 U.S. 394 (1915) 3 ....... 31, 45

Heckler v. Community Health

Services, 467 U.S. 5l

ee ok” 6 ot Ceaebeneee én 34

Hodel v. Virginia Surface Mining

and Reclamation _Association,

og | 6} eee 51

Huron Portland Cement Co. yv.

City of Detroit, 362 U.S.

See GD. Cs bb oe 6556065506 0000% 26

Kaiser Aetna v. United States, 444

U.S. 164 (1979) ln ee 19, 40

Keystone Bituminous Co-l

Association v. DeBenedictis,

480 U.S. 470 (1987) =... ... 0a. 22, 23,

28, 37

39, 42

45, 47

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419

ie” )—tCt—=“‘i‘“C:;‘i‘“‘:é‘SS!:C OC eee we 19, 34,

36-37,

41, 43

Mathews v. De Castro,

oe ae) 6) | rrr 25

Cases:

McCallin v. Walsh,

64 A.D.2d 46 (1st Dept.),

aff'd on opin. below

sub. nom Kaufman y.

O'Hagan, 46 N.Y.2d 808

eee eS Cle,

Mugler v. Kansas,

Boe Um. Gee CEBBT) —s ccccecces

Nollan v. California Coastal

Commission,

483 U.S. 825 (1987) __.......

Orientai Boulevard Co. v. Heller,

27 N.Y.2d 212 (1970), app.

dismissed, 401 U.S.

i): ) eS

Park Avenue Tower Associates v.

City of New York, 746 F.2d 135

nom. 40 Eastco v. City of New

York, 470 U.S. 1087

SD Piet er cic,

Penn Central Transportation Co. vy.

City of New York, 438 U.S. 104,

reh. denied, 439 U.S. 883

tee or errr Tree

Pennell v. City of San Jose,

485 U.S. 1 (1988) .......

Page

Cases:

Pennsylvania Coal Co. v. Mahon,

200 U.S. SOS (IGZZ) lc eee 43

Queenside Hills Realty Co. v. Saxl,

Jae U.S. GO CERES) «lc we cee 28, 30,

33, 43

Railway Express Agency

Inc. v. New York,

336 U.S. 106 (1049) . «........ 27

Tenement House Dept. of

City of New York v. Moeschen,

179 N.Y. 325 (1904), aff'd,

ee ates GO COOOED * cscccccces 33, 46

United States v. Boccanfuso,

882 F.2d 666 (2d Cir., 1989)..... 34

United States v. Central Eureka

Mining Co., 357 U.S. 155

EE 44

United States v. Northeastern

Pharmaceutical & Chemical Co.,

810 F.2d 726 (8th Cir., 1986),

cert. denied, > an

108 S.Ct. 146 (1987) ....... 34

United States v. Salerno,

461 U.S. TSO CUSGT) le eee 23

Village of Belle Terre v. Boraas,

ie) ee 24

vii

Cases:

Village of Euclid v. Ambler Realty

Co., 272 U.S. 365 (1926) me oS

45, 51

William C. Haas & Co. v.

City of San Francisco,

605 F.2d 1117 (9th Cir., 1979),

cert. denied, 445 U.S. 928,

reh. denied, 446 U.S. 929

Cf BT rrr rere err 45

Williamson County Regional Planning

Commission v. Hamilton Bank of

Johnson City, 473 U.S. 172

Se eee 50

Willing v. Chicago Auditorium,

ek C. | ere 51

U.S. Constitution:

Fifth Amendment ______............ 42

Fourteenth Amendment ........... 42

Federal Statutes and Rules

of Civil Procedure

42 U.S.C. §9607

(Comprehensive Environmental

Response, Compensation, and

Liability Act of 1980) eee 35

Fed. R. Civ. P. 12(b)(1) _—st..... . . 18

Fea. BR. Ca¥. FF. TACOS) «ssc ae wecs 4, 18

viii

Local Laws:

New York City Asbestos

Control Law (Local Law 76

of 1985), N.Y.C. Admin. Code,

rs k6gucewacsesessbens

New York City Local Law

Eh ttt wesc ees

New York City Local Law

Sr rrr

New York City Building

Code, N.Y.C. Admin. Code,

§27-128 et seq. iw ee eee eee

N.Y.C. Admin. Code,

To ON ehaeececessrecsace

N.Y.C. Admin. Code, §24-102.....

N.Y.C. Admin. Code, §24-146

N.Y.C. Admin. Code, §26-115

De Stee ee ne eneseevens

N.Y.C. Charter, 8§ 645(b)(1),

Stee ha the ease eases

N.Y.C. Charter, §1403(c) ..

Page

Local Regulations:

DEP, Rules and Regulations

of the New York City Asbestos

Control Program,

se eee kee 12-13

New York City Rules and

Regulations Governing

Training of Asbestos

Handlers, Asbestos Handler

Supervisors, and Asbestos

eC = =—3—<—™*S*C«s eR ORO 14

No. 89-1412

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

MELVYN KAUFMAN, 77 WATER STREET,

INC., 77 WATER STREET ASSOCIATES, 127

JOHN STREET FEE ASSOCIATES, 127 JOHN

STREET ASSOCIATES, 437 MADISON

AVENUE FEE ASSOCIATES, and 437

MADISON AVENUE ASSOCIATES,

Petitioners,

-against-

THE CITY OF NEW YORK, THE

ENVIRONMENTAL CONTROL BOARD OF THE

CITY OF NEW YORK, EDWARD I. KOCH, in

his capacity as Mayor of the City of New

York, HARVEY W. SCHULTZ, in his capacity

as Commissioner of the Department of

Environmental Protection, and CHARLES M.

SMITH, JR., in his capacity as Commissioner

of the Department of Buildings,

Respondents.

RESPONDENTS' BRIEF IN OPPOSITION TO A

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STATEMENT OF THE CASE

The instant case concerns the efforts of

petitioners Melvyn Kaufman et al.

("petitioners"), holders of fee or leasehold

interests in three commercial office buildings

in Manhattan, to challenge the facial

constitutionality of laws and _ regulations

enacted by respondents, the City of New

York, et al. ("the City"), ! governing the

removal of asbestos in buildings for the

public health and welfare. The laws apply

only where the owners’ voluntary decision to

do renovation, alteration or demolition work

will disturb “friable” asbestos, thus causing

harmful asbestos to become airborne.

Petitioners’ complaint alleges that: (1)

they have incurred about $8,500,000 in

asbestos abatement costs associated with

their voluntary alteration and _ renovation

lhe named defendants-respondents are the

City of New York, its Environmental Control

Board, the former Mayor, and the former

Commissioners of the Department of

Environmental Protection and the Department

of Buildings.

work and about $1,500,000 in lost rent; and

(2) they "will continue to be injured" by

"future" abatement costs of about

$32,000,000 and "future" lost rents of about

$8,500,000 (A35-A36, 935-37, Pet., p. 4,

n.3). The complaint does not allege that

petitioners have lost the economically viable

use of their property, that they are unable

to continue to operate these commercial office

buildings for their intended use, nor even

that they cannot make a profit. It also dues

not acknowledge that there is an available

variance process as to the alleged "future"

$40,006,000 loss.

Petitioners seek to have this Court

review by way of certiorari an order and

judgment of the United States Court of

Appeals for the Second Circuit, entered

December 8, 1989, which affirmed a judgment

of the United States District Court for the

Southern District of New York, entered May

26, 1989. Upon the City's motion, the

District Court dismissed the complaint for

failure to state a claim under Fed. R. Civ.

P. 12(b)(6). Petitioners’ unsuccessful

federal constitutional claim has two aspects:

(1) a due process challenge, now nominally

dropped in this Court; and (2) an

unconstitutional taking claim. Neither

deserves review.

Indeed, respondents are forced to set

the record straight. This case is not novel

in takings jurisprudence, but for petitioners’

distortion of the governing statutory and

regulatory scheme. Once that scheme is

understood, it is clear that petitioners have

not stated a claim for a taking without just

compensation, given the controlling legal

principles set forth by this Court, which are

largely unacknowledged by petitioners.

Bs The Statutory and Regulatory Scheme

Governing Asbestos Removal

In the wake of increasing knowledge

about the dangers of asbestos, once thought

to be a "wonder material” and commonly used

in building construction, the City of New

York enacted a comprehensive’ regulatory

scheme to protect the public health and

safety. Environmental Encapsulating Corp.

v. The City of New York, 855 F.2d 48,

90-52 (2d Cir., 1988).

[Blefore the deadly hazards of

asbestos were realized, more than half of the

high-rise commercial buildings built in the

City between 1958 and 1972 used asbestos as

fireproofing,” virtually every boiler room

has it, and New York City buildings have an

estimated 3.5 million tons of asbestos. Id. at

30 Prior to 1971, there were two methods

approved by the New York City Board of

Standards and Appeals for use in the City of

New York for fireproofing of steel structural

members in building construction. One was

certain approved asbestos products, often

sprayed onto the steel members, and the

other was cementitious materials, a

sprayed cement or concrete block. The

choice of which method to use lay solely with

the owner.

In 1972, in response to then identified

public health hazards, the City completely

banned the use of sprayed asbestos in

building construction, effective February

1972. N.Y.C. Admin. Code, §24-146.

Thereafter, in December 1985, the City

Council enacted Local Law No. 76 of 1985

("Local Law 76") to address the _ public

health hazards posed by voluntary alteration

or demolition work in buildings containing

asbestos and to regulate asbestos abatement

activities. N.Y.C. Admin. Code, §§24-146.1

and 27-198.1.2

In particular, many of the

asbestos-containing materials already present

in buildings are subject to crumbling or

powdering when they are touched or

otherwise disturbed, with the result that

"friable" asbestos fibers become airborne.

The "Declaration of Legislative Findings and

Intent" for Local Law 76 states that (see,

Environmental Encapsulating Corp., supra,

855 F.2d at 51):

The council hereby finds that

exposure to airborne asbestos

fibers and particles in the air has

been linked by reputable medical

and_ scientific authorities to a

significant increase in the

incidence of diseases such as

asbestosis, bronchogenic

carcinoma, mesothelioma, and other

malignancies and that substantial

amounts of materials containing

asbestos have been used in

buildings for fireproofing,

insulation, soundproofing,

2In December 1986, the City Council enacted

Local Law No. 80 of 1986, which amended

certain provisions of Local Law 76, not at

issue here.

decorative and other purposes.

The council further finds that the

predominant causes of asbestos

becoming airborne are due to the

performance of building renovation

and demolition without adequate

adherance [sic] to procedures for

safeguarding workers and_ the

general public, by persons who

have not received adequate

training in the’ handling’ of

materials containing asbestos.

Therefore, it is the purpose

of this local law to safeguard the

public health by requiring that

renovation or demolition projects

which disturb asbestos be

conducted in accordance’ with

procedures established pursuant to

the provisions of this local law and

that workers who handled materials

containing asbestos receive

appropriate training (Emphasis

added in Court opinion).

Swithout any basis, and completely ignoring

this legislative declaration, petitioners attack

Local Law 76 as "an arbitrary act of political

expediency" and the City's actions as

"cavalier" (Pet., pp. 4-5). Not only do

petitioners ignore the fact that’ they

themselves, their tenants and the _ public

benefit from the removal of harmful "friable"

asbestos in their voluntary renovation work,

but the legislation is presumptively

constitutional, and speculative, lurking or

hidden legislative motivations do not come

(Footnote Continued)

Local Law 76 established an asbestos

abatement program which requires that the

presence and condition of asbestos’ be

ascertained before any building alteration,

renovation or demolition work is performed,

and that the asbestos either be sealed in

place or removed if the work would disturb

(Footnote Continued)

into play (see A25, n.13). Once the Court

makes the limited inquiry as to whether the

law bears aé “rational relationship to _ the

public health and welfare, it may not go

beyond that to examine its wisdom or need.

See, e.g., Caban v. Mohammed, 441 U.S.

380 (1979); Day-Brite Lighting v. State of

Missouri, 342 U.S. 421, 423 (1952).

In any event, the District Court recognized

that Local Law 76 was passed in 1985, in

part, as a result of increased knowledge and

advances in science as to the health risks of

asbestos (Al14-Al15); it is well-accepted that,

based on continuing scientific and federal

agency reviews in the 1980's, more developed

risk assessments and studies served as the

scientific basis for further regulations. Cf.

Environmental Encapsulating Corp., supra,

835 F.2d at 50, and Record on Appeal

therein, Affidavit of William H. Nicholson,

Ph.D., dated May 4, 1987, also submitted as

background in this case in the _ Joint

Appendix below at JAS5SO-JA51, JAS55.

it and cause it to become airborne. Thus,

before any such work, an applicant for a

building permit must file either a

certification that the work to be performed

will not constitute an “asbestos project,” or

submit an "asbestos inspection report” which

sets forth the condition of the building as to

the presence and condition of asbestos

N.Y.C. Admin. Code, §27-198.1(a).4 A

certification that building work does not

constitute an asbestos project must be

4 Local Law 76 defines “asbestos project” as

any work in connection with the alteration,

renovation, modification or demolition of a

building which will disturb more than 260

linear feet or 160 square feet of “friable”

asbestos containing material, or lesser

amounts which the commissioner may

establish by regulation. N.Y.C. Admin

Code, §24-146.1(a)(8). It defines "asbestos

containing material” as asbestos or any

material containing more than 1% asbestos by

weight, and such material is defined as

“friable” if it can be crumbled, pulverized or

reduced to powder when dry, by hand

pressure. _ At Admin. Code,

§24-146.1(a)(4), (9).

prepared by an individual certified by DEP

as having “satisfactorily demonstrated his or

her ability to identify the presence and

evaluate the condition of asbestos in a

building and structure,” i.e., an "asbestos

investigator.” N.Y.C. Admin Code,

§24-146.1(a)(3). The law requires that all

asbestos abatement activities be conducted in

accordance with approved safety procedures

and be performed by persons with

appropriate training and _ certification to

minimize the threat to the public from

asbestos removal

The law does not require the sealing or

removal of any asbestos which is not being

listurbed or will not be disturbed by such

work

The asbestos abatement program is

1dministered by the Department of

Environmental Protection and its

Commissioner (hereafter "DEP"). consistent

with its mandate "to preserve, protect and

improve the air resources of the City so as

to promote health, safety and welfare” and

to prevent injury to human life. City

Charter, §1403(c); N.Y.C. Admin. Code,

§24-102. In response to Local Law 76's

delegation to “establish ... procedures for

the safeguarding of the health and safety of

the public and all persons who work at or in

the vicinity of an asbestos project’, N.Y.C.

Admin Code, §24-146.1(c), DEP adopted

rules and regulations governing asbestos

abatement activities in March 1987, and later

amended.” See DEP, Rules and Regulations

"In addition, the alteration, renovation and

demolition of buildings in New York City is

subject by law to the regulation of the

Department of Buildings. See N.Y.C.

Charter, §§645(b)(1), (2). Aside from an

owner's common law duty, an owner of a

building is charged with the responsibility

“at all times” for the safe maintenance of the

building and its facilities. N.Y.C. Admin.

(Footnote Continued)

of the New York City Asbestos’ Control

Program, §§8000-8405.

Notably, there are certain activities

under the regulations which presumptively

do not constitute alteration or renovation

work involving "friable" asbestos material,

including work on awnings, newsstands,

parapet walls, fire escapes, andi tthe

replacement of exterior water tanks For

such activities, no notification is required

unless “friable” asbestos material is

discovered. Id., §§8101, 8152 However,

where the alteration or renovation work will

disturb ‘friable’ asbestos material, the

regulations require the filing of an asbestos

(Footnote Continued)

Code, §27-128. Owners can be ordered to

correct unsafe conditions on their property

and to abate a public nuisance. _* oof

Admin. Code, §§26-115 et seq., 17-142 et

seq.

Sane

inspection report, together with a specified

filing fee. Id., §§8101, 8152.

With respect to the actual conduct of

asbestos abatement work, the DEP

Regulations specify approved procedures and

technical standards for air sampling,

monitoring and analysis (§8170 et seq.);

materials and equipment (§8190 et seq.);

workplace preparation, decontamination, and

entry and exit procedures (§8210 et seq.);

asbestos abatement procedures, (§8230 et

seq.); and clean-up procedures (§8240 et

seq.).°

In essence, these regulations require

that the area where the abatement work is to

be performed be isolated by means of piastic

5in December 1986, DEP adopted Rules and

Regulations Governing Training of Asbestos

Handlers, Asbestos Handler Supervisors, and

Asbestos Investigators. §§8110-8146; see

Environmental Encapsulating Corp., supra,

855 F.2d at 51-52, 60-62.

barriers and the sealing or reverse

pressurization of the heating, ventilation and

air conditioning system; that the air be

monitored for asbestos before, during and

after the work; that decontamination facilities

be installed and _ “strict entry and exit

procedures instituted to prevent the escape

of asbestos from the work area on clothes or

equipment; and that the asbestos be

properly bagged for disposal or sealed in

place. The regulations do not require that

buildings in which asbestos abatement work

is being performed be evacuated, except, of

course, the area in which the work is being

performed, and any areas which cannot be

isolated from the work area.

Finally, in May 1988, Local Law No. 46

of 1988 ("Local Law 46") amended the

Administrative Code to allow for individual

variances from the requirements of Local Law

76 and the regulations for specific asbestos

projects. w.2.C. Admin. Code,

§24-146.1(i). Variances may be granted if

adequate proof is presented that compliance

with particular requirements’ related to

asbestos removal or encapsulation would

impose unreasonable hardship Id In

granting a variance, such conditions ‘as the

policies of [the Administrative] Code may

require’ may be imposed Id., Local Law 46

at $7(i).-

‘Section 7 of Local Law 46 provides

[t]he commissioner [of the DEP]

may grant individual variances for

asbestos projects at specific sites,

from particular requirements

related to asbestos prescribed by

this code and regulations or orders

of the commissioner promulgated

thereunder, whenever it is found,

upon presentation of adequate

proof, that compliance with such

requirements would impose

unreasonable hardship In

granting q variance the

commissioner may impose such

sonditions as the policies of this

(Footnote Continued)

2. The Litigation History and Opinions

Below

Petitioners filed a complaint against the

City of New York, et al., on July 22, 1988

(A27-A43). They sought a judgment: (a)

declaring Local Law 76 of 1985, as amended,

and the corresponding regulations

unconstitutional, null and void; (b) enjoining

the City from enforcement; and (c) awarding

damages representing their cost of

compliance (A42-A43).

The first claim is the only federal

constitutional claim (A36-A38, 41), with the

others various state law claims including an

estoppel claim. As noted, the federal claim

(Footnote Continued)

code may require and shall publish

in the City Record no later than

seven days after the granting of

such variance a statement of the

reasons leading to his or her

decision.

N.Y.C. Admin. Code, §24-146.1(i). See also

DEP Regulation §8102 (variance procedure).

has two aspects: (1) that the asbestos

removal laws and regulations violate their

due process rights; and (2) that’ they

constitute a taking of property without just

compensation.

Upon the City’s motion, the United

States District Court for the Southern

District of New York (Ward, U.S.D.J.),

granted the motion to dismiss the federal

claim for failure to state a claim upon which

relief can be granted under Fed. R. Civ. P.

12(b)(6). It also dismissed the pendent

state claims for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1).

See A5-A26; Kaufman v. The City of New

York, 717 F. Supp. 84 (S.D.N.Y., 1989).

On appeal, the United States Court of

Appeals for Second Circuit unanimously

affirmed the judgment below (Al-A4;

Kaufman v. The City of New York, 891 F.2d

446 (2d Cir., 1989) (per curiam)). Upon

review of all of the parties’ contentions

(A2-A4), the Court of Appeals affirmed

“substantially for the reasons given” in the

District Court's "careful and comprehensive

opinion” (A4).

In brief, the taking claim was found

meritless under recent and_ controlling

precedent from this Court (A19-A25).

Rejecting the physical occupation claim in

light of the "narrow" ruling in Loretto vy.

Teleprompter Manhattan CATV Corp., 458

U.S. 419, 441 (1982), the courts recognized

that Local Law 76 is a regulation on the use

of property, which only appities if the owner

seeks to use it in a manner which threatens

to make asbestos’ airborne (A19-A21).

Unlike Loretto, supra, and Kaiser Aetna v.

United States, 444 U.S. 164, 179-180 (1979),

"Local Law 76 and the regulations clearly

allows plaintiffs to maintain all their rights

of control” over their property and "the

achieved" (A22 & »n.12). In

(A22-A23):

Despite [plaintiffs'] diligent

attempts to characterize Local Law

76 as a physical invasion of their

property, the law simply regulates

the uses that they can make of the

buildings, and does so in a rather

narrow manner. The ability to

renovate the buildings is

conditioned on the protection of

the public from the dangers

associated with airborne asbestos.

Plaintiffs are free to use the

buildings without making

alterations or to make alterations

that do not present a public health

hazard by causing asbestos to

become _ airborne. If plaintiffs

choose either of these alternatives,

the strictures of Local Law 76 can

be completely avoided. The extent

of any alteration work to be

performed, and therefore’ the

extent of the cost of compliance

with the law for any asbestos

project, is solely left to the

discretion of plaintiffs.

Furthermore, plaintiffs continue to

control the activities that occur in

their buildings and remain able to

supervise or dismiss the qualified

individuals they voluntarily choose

to retain to perform the asbestos

removal work. It is plaintiffs who

remain ultimately responsible for

compliance with the requirements

of Local Law 76. Their ownership

manner in which compliance with the law is

sum

rights in the property are not

significantly diminished by the

requirements of asbestos removal.

So too, under well-established

precedent (see A23 and cases cited therein),

there was no claim because ". . . valid

zoning laws which prohibit an entire use of

property result in more severe hardship on

property owners than Local Law 76, which

only adds to the cost of a specific use of

property dangerous to the public, and leaves

the final choice on how to use the property

in the hands of the owner” (A24).

Furthermore, petitioners failed to allege

a sufficient diminution in value or use of

their buildings caused by Local Law 76 to

State a claim, since there is no allegation

that the buildings will be robbed of all

economic use, 1 34-38, or that the law will

force them to give up the general use of

their property as office buildings, nor even

that the operation of their buildings will be

unprofitable (A24, citing Keystone

Bituminous Coal Association v. De

Benedictis, 480 U.S. 470, 495-496 (1987))

("petitioners have not claimed .. . the Act

makes it commercially impracticable for them

to continue mining ... Indeed, petitioners

have not even pointed to a single mine that

can no longer be mined for profit") .°

In sum, "Local Law 76 and e the

regulations impose additional costs’ on

plaintiffs as incident to their ownership of

property, but these costs are well within the

8The District Court noted that petitioners

are not required to seal off the entire

building while asbestos is removed under the

regulations, only those sections which will be

affected by the alteration work (A24).

Accordingly, those parts of the building not

being renovated are fully available for their

use and economic benefit and the buildings

continue to be used as office buildings, "a

reflection of [petitioners'] own determination

that the benefits of continued operation

outweigh the costs of compliance with Local

Law 76" (A24-A25).

scope of the sity s police powers

Accordingly, plaintiffs failed to state a

constitutional takings claim” (A25)

REASONS FOR DENYING THE

WRIT OF CERTIORARI

THE CITY'S ASBESTOS REMOVAL

LAWS AND REGULATIONS ARE A

CONSTITUTIONAL EXERCISE OF

[ITS POLICE POWERS AND DO NOT

CONSTITUTE AN UNCONSTITU-

TIONAL “TAKING” OF PETI-

TIONERS' PROPERTY .

ADDITIONALLY, THERE IS AN

AVAILABLE VARIANCE PROCESS,

MAKING THE CLAIM PREMATURE.

To succeed in their facial challenge to

the constitutionality of the asbestos removal

laws, petitioners had to show that "no set of

circumstances exists under which the Act

would be valid.” United States v. Salerno,

481 U.S. 739, 745 (1987). Petitioners failed

to do so. Rather, based on ample

precedent, particularly as to public health,

safety and welfare regulations, see, e.g.,

Keystone Bituminous Coal Association vv.

DeBenedictis, 480 U.S. 470 (1987), the

instant case does not warrant review. As

shown below, petitioners do not establish:

(1) any facts arising to the level of an

unconstitutional taking or other claim; or (2)

that their claim is ripe for review.

1. The Valid Exercise of the Police

Power

Although petitioners nominally raise

only a taking claim in this Court, their

purported analysis of that claim makes clear

that they once again challenge the City's

exercise of its police powers (Pet., passim).

Nonetheless, it is well-settled that economic

and social welfare legisiation satisfies due

process if it is rationally related to a

legitimate governmental objective. Village of

Belle Terre v. Boraas, 416 U.S. 1 (1974).

"A legitimate governmental purpose is,

of course, one which furthers the public

health, safety, morals or general welfare."

Village of Euclid v. Ambler Realty Co., 272

U.S. 365, 395 (1926). Every statute is

entitled to a strong presumption of

constitutionality,"” Califano v. Aznavorian,

439 U.S. 170, 175 (1978); Mathews v. De

Castro, 429 U.S. 181, 185 (1976), based on

the principle that courts will “net sit as a

super-legislature to weigh the wisdom of

legislation nor to decide whether the policy

it expresses offends the public welfare.”

Day-Brite Lighting, Inc. v. _ State of

Missouri, 342 U.S. 421, 423 (1952).

Plaintiffs maintain that because they

constructed their buildings in accordance

with applicable building regulations at a time

when asbestos was one of two approved

building materials, the costs of asbestos

abatement cannot be imposed on them, but

rightly lie with the City (A36-A38, 4l(a),

A42, 964). However, in the exercise of its

police power to protect the public health,

safety and welfare, the City can require

property owners to comply with new safety

measures, even where such’ measures

necessitate costly improvements on existing,

lawfully constructed buildings.

The clearly legitimate governmental

objective underlying the challenged Local

Law 76 is the protection of the public from

the serious health dangers, including

asbestosis and carcinoma, posed by airborne

asbestos. Environmental Encapsulating

Corp., supra, 855 F.2d at 50-52; see ante,

D. ©. Thus, the asbestos abatement

program, as a land use regulation directly

and reasonably’ related to the _ stated

legislative purpose, is a_ "constitutionally

valid use of [the] state's police power.” Id.

at 53. Cf. Huron Portland Cement Co. vy.

City of Detroit, 362 U.S. 440, 442 (1960)

("Legislation designed to free from pollution

the very air that people breathe clearly falls

within . . . police power"). Significantly,

the complaint does not allege that asbestos

does not present a public health hazard, nor

that asbestos abatement is not a _ proper

subject of the City’s police power. See also

Railway Express Agency Inc. v. New York,

336 U.S. 106, 108-109 (1949).

While the challenged laws and

regulations do impose certain obligations on

building owners to ensure compliance with

the law, such a requirement is

unexceptional. As this Court held _ in

Keystone, supra, 480 U.S. at 491-492

(1987):

Under our system of government,

one of the state's primary ways of

preserving the public weal is

restricting the uses individuals can

make of their property. While

each of us is burdened somewhat

by such restrictions, we, in turn,

benefit great], from the

restrictions that are placed on

others. ... These _ restrictions

are "properly treated as part of

the burden of common

citizenship.” .. . Long ago it

was recognized that "all property

in this country is held under the

implied obligation that the owner's

use of it shall not be injurious to

the community.... (citations

omitted).

See also Andrus vy. Allard, 444 U.S. 51, 65

(1979), citing Penn Central Transportation

Co. v. New York City, 438 U.S. 104,

123-128 (1978) (government regulation by

definition involves the adjustment of rights

for the public good; “often this adjustment

curtails some _ potential for the use or

economic exploitation of private property”).

The leading case for the principle that

even owners of lawfully constructed

buildings can be compelled in the name of

public safety to make improvements to their

property, even at great expense, is

Queenside Hills Realty Co. v. Saxl, 328 U.S.

80 (1946).

There, in upholding a challenge to the

constitutionality of a New York law requiring

that all lodging houses install an automatic

wet sprinkler pipe system as a fire safety

measure, despite compliance with all

applicable laws some four years earlier, this

Court declared (id. at 81-83):

Little need be said on the due

process question. We are not

concerned with the wisdom of this

legislation or the need for it.

Protection of the safety of persons

is one of the traditional uses of

the police power of the States.

It is for the legislature to

decide what regulations are needed

to reduce fire hazards to a

minimum. Many types of social

legislation diminish the value of

the property which is regulated.

The extreme cases are those where

in the interest of the public safety

or welfare the owner is prohibited

from using his property. We are

dealing here with a less drastic

measure. But in no case does the

owner __ of property acquire

immunity against exercise of the

police power _ because he

constructed it in full compliance

with the existing laws. The police

power is one of the least limitable

of governmental powers, and in its

operation often cuts down property

rights. ... [A] statute may be

sustained though some of the

objects affected by it may be

wholly innocent. The question of

validity turns on the power of the

legislature to deal with the

prescribed class. That power

plainly exists here. (emphasis

added) (citations omitted).

Accord, Andrus v. Allard, 444 U.S. 51

(1979) (fact that artifacts were lawfully

acquired does not preclude government from

prohibiting their sale); Hadacheck v.

Sebastian, 239 U.S. 394, 410 (1915) ("A

vested interest cannot be asserted against

[the police power] because of conditions once

existing” )

710 a pertinent State case, McCallin v.

Walsh, 64 A.D.2d 46 (lst Dept.), aff'd on

opin. below sub nom. Kaufman vy. O'Hagan,

46 N.Y.2d 808 (1978), plaintiff Melvyn

Kaufman, one of the instant petitioners,

challenged on constitutional and state law

grounds virtually identical to the instant

ones, a New York City law which required

the installation of costly alarm,

communication, elevator-recall and

sprinkler/smoke-control systems, and_ the

adoption of a fire safety plan in 870 existing

office buildings, including those herein.

Relying on Saxl, the New York Courts

upheld the constitutionality of the local law,

based on the "... well established principle

that a legislature may, as a proper exercise

of the police power, require building owners

to make improvements’ essential to the

reduction of fire hazards.” Id., 64 A.D.2d

at 59.

Try as they may to avoid these legal

principles, the fact is that petitioners’ claims

rest on the fundamentally flawed premise

that an owner's "reliance" on_ existing

building codes gives rise to a vested right,

which renders any subsequent __ safety

requirements an_ unconstitutional taking

without just compensation. They argue that

the challenged laws and regulations are the

“retroactive” imposition of an _ affirmative

requirement that plaintiffs “rectify prior

[City] mistakes" by removing asbestos

originally installed at the City’s "direction"

(Pet., p. 3, 6-7). Simply put, while they

may fancy themselves as having brought a

"case of first impression" (Pet., p. 3), they

improperly seek to bootstrap an equitable

estoppel argument into a_ constitutional

deprivation.

At the outset, notwithstanding their

litany that the City’s "directed" them to

install asbestos (Pet., passim), the fact is,

of course, that the City never required the

use of asbestos; it required fireproofing.

To accomplish this public safety purpose,

the City approved . building materials

containing the two widely-accepted and

effective fireproofing technologies: cement

and asbestos (A30, 18). Petitioners were

free to use either material, based on their

own assessment of relevant factors including

relative utility and cost.

In any event, their attempt to insulate

themselves from the above controlling

principles of law through the subterfuge of

unconstitutional “retroactivity” (Pet., pp.

6-15) must be rejected based on the above

discussion and for all the reasons stated by

the District Court (A15-Al17).

Petitioners cannot even show that the

laws are retroactive because obviously all

new safety measures require the "undoing,"

to some degree, of prior lawful construction.

See Saxl, supra. This Court cited Saxl with

approval in Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419

(1982), stressing that it had consistently

affirmed the State's broad power to regulate

landlord-tenant relationships without paying

for all ensuing economic injuries. Id. at

440. Thus the Loretto holding "in no way

alters" the State's power to require

compliance with building codes and_ to

require provision of "smoke detectors, fire

extinguishers and the like ....” 1a. 1°

27 N.Y.2d 212 (1970), app. dismissed, 401

U.S. 986 (1971) (law requiring installation of

air pollution control equipment held

constitutional); Tenement House Dept. of

City of New York v. Moeschen, 179 N.Y.

325, 333-335 (1904), aff'd, 203 U.S. 583

(1906) (law requiring installation of

individual water closets held constitutional,

notwithstanding its application to existing

building constructed in compliance’ with

administrative order).

See also Oriental Boulevard Co. v. Heller,

Whether the threat is from fire or

asbestos, the principle is the same: even

faultless property owners can be required to

assume the burden of rectifying conditions

on their premises which the legislature has

determined jeopardize public health, safety

or welfare. See Al4, n.7 and Heckler v.

Community Health Services, 467 U.S. 51, 60

(1984) (application of equitable’ estoppel

against government only in very limited and

unusual circumstances, for to do otherwise

ss would frustrate the Government's

ability to enforce the law and, in turn,

undermine the public’ interest in _ full

enforcement of the law") 22

LI see also United States v. Boccanfuso, 882

F.2d 666 (2d Cir., 1989) (no estoppel from

enforcement of Clean Water Act); United

States v. Northeastern _ Pharmaceutical &

Chemical Co., 810 F.2d 726, 734 (8th Cir.,

1986), cert. denied, __U.S.__, 108 S.Ct.

146 (1987) (retroactive application of

(Footnote Continued)

For all these reasons, petitioners do not

state any type of due process claim and

their attempts to constitutionalize an estoppel

claim are baseless.

2. The Taking Claim

Turning to petitioners’ direct challenge

that the City’s asbestos removal laws and

regulations on their face are an

unconstitutional taking of their property,

there are two threshold obstacles they fail to

overcome: (1) they have ané_e available

variance process (post, pp. 50-51), and (2)

facial taking challenges are especially

disfavored by this Court. Pennell v. City

of San Jose, supra, 485 U.S. at 11-14;

Keystone, supra, 480 U.S. at 494. In any

(Footnote Continued)

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, 42

U.S.C. §9607, for the legitimate legislative

purpose of cleanup of abandoned hazardous

waste does not violate due process. nor

constitute an unconstitutional taking).

event, the laws in no way appropriate their

property for the use of any governmentai

authority or agency or otherwise result in a

permanent physical occupation. Petitioners,

who do not even attempt to argue that the

law does not advance a_— substantial

government interest, fail to meet the heavy.

burden of showing that the "mere enactment”

of the law has deprived them of all

beneficial, economically viable use of the

property.

Regardless of petitioners’ unsupported

argument (Pet., pp. 6-14), this Court draws

a clear distinction between "a permanent

physical occupation” and a "regulation that

merely restricts the use of property.”

Loretto v. Teleprompter Manhattan CATV

Corp., supra, 458 U.S. at 430. Compare

Penn Central Transportation Co. v. New

York City, 438 U.S. 104, reh. denied, 439

U.S. 883 (1978). The distinction itvolves

the difference between an “actual

invasion of the land, amounting to an

appropriation of, and not merely an injury

to, the property” (Loretto, supra, 458 U.S.

at 428), and an interference with property

that "arises from some public program

adjusting the benefits and burdens of

economic life to promote the common good"

(Penn Central, supra, 438 U.S. at 124).

A. Physical Taking Claim

Petitioners do not fall within the "very

narrow” holding of Loretto, 458 U.S. at 441,

since there is no_ permanent _ physical

occupation. See F.C.C. vy. Florida Power

Corp., 480 U.S. 245, 251 (1987). Here,

Local Law 76 and the DEP regulations, on

their face, do not require the appropriation

of private property for City or _ public

occupancy. Rather, they are _ plainly

regulatory in nature. Any interference with

petitioners’ property arises from the

3°

Legislature's determination that the benefit a

building owner derives from the ability to

alter or demolish his property must be

balanced with the burden of ensuring that

the public health, safety and welfare is not

jeopardized thereby by exposure to airborne

asbestos. Cf. Keystone, supra, 480 U.S. at

470, 476-477, 488 n.18 (1987); Mugler v.

Kansas, 123 U.S. 623, 665, 668-670 (1887).

Despite the clear statutory language,

petitioners continue to make the false

assertion that the City’s asbestos laws and

regulations "affirmatively require" them "to

seal off and close portions of their

buildings", thus allegedly showing that there

is government- mandated "physical

interference with [their] buildings" (Pet.,

o. EB). Try as they will to confuse the

issue, the distinction between a regulatory

impact and a physical taking is clear. It is

obvious from the case law that it may be

necessary temporarily or even permanently to

close off part of a building to carry out the

alterations required to comply with new

safety measures, but such laws do _ not

interfere with private ownership and control,

and any work that is done is performed

under the owner's direction.

In addressing a far closer question,

this Court held that a law that permanently

closed 50% of the plaintiff's subsurface land

to mining -beneath protected buildings and

land as a means of providing surface support

"of course" involved "land use regulation,

not a_- physical appropriation of

property.” Keystone, supra, 480 U.S. 489,

n.18. While petitioners do not acknowledge

Keystone at all, even the dissenting opinion

therein provides two key distinctions from

the instant case: (1) there is an undisputed

"discrete and narrow’ purpose here to

promote public health and safety; and (2)

RE ty PO Py PPO te

there is no "complete extinction" or

"destruction" of petitioner's property. Id.,

480 U.S. at 513.

Petitioners disingenuously try to come

under Loretto's "permanent physical

occupation" standard, without even

acknowledging that they asserted below that

the alleged taking "to date" was "temporary"

(Pl.-App. br., 2d Circuit, 8/14/89, p. 18).

So too, their reliance on Kaiser Aetna vy.

United States, 444 U.S. 164 (1979) (Pet.,

pp. 6,: 9, 12-13) is misplaced. Kaiser

involving actual physical appropriations of

property, i.e., the requirement that the

property owner open his marina to _ the

public, and this Court expressly rejected the

argument that the government could be

"estopped" by official consent. Id. at

179-180. Here, the City has in no way

physically invaded petitioners’ property by

depriving them of their "right to exclude"

the public from their premises,’ the

"fundamental element" of property ownership

emphasized by this Court. Id., 444 U.S. at

179-180.

Finally, petitioners’ “confiscatory"

taking cases (Pet., pp. 9-10) are inapposite,

and evidence no conflict with this case.

First, those cases involve the issuance and

revocation of permits and rezoning only, and

not the unquestioned government power to

regulate building codes and require

compliance with new safety laws. Further,

they still require a showing of "onerous"

regulation ; either by deprivation of

economically viable use, or by actual

appropriation by government title or

occupation. Neither showing is made here.

B. Regulatory Taking Claim

The law is clear that a land use or

zoning statute "does not effect a taking if it

‘substantially advance[s] legitimate state

interests’ and does not ‘'den[y] an owner

economically viable use of his land.' "

Nollan v. California Coastal Commission, 483

U.S. 825, 834 (1987), quoting Agins v.

Tiburon, 447 U.S. 255, 260 (1980). Accord,

Keystone, supra, 480 U.S. at 485. As set

forth above, ante, pp. 24-35, the City's

asbestos laws and regulations constitute a

lawful exercise of the City's police power

and substantially advance the public health,

_ safety and welfare.

The Fifth Amendment, applied to the

States through the Fourteenth Amendment

(Penn Central, supra, 438 U.S. at 122), is

“designed to bar Government from forcing

some people alone to bear public burdens

which, in all fairness and justice, should be

borne by the public as a whole." Armstrong

v. United States, 364 U.S. 40, 49 (1960).

Nevertheless, "Government could hardly go

on if to some extent values incident to

property could not be diminished without

paying for every such change in the general

law." Pennsylvania Coal Co. vy. Mahon, 260

U.S. 393, 413 (1922).

Here, even if, arguendo, petitioners

_were unable to earn a reasonable rate of

return, there would still be no

unconstitutional taking in this case, given

the overriding and_ critical legislative

purpose to protect the health and safety of

citizens. See Saxl, supra; Loretto, supra,

ante, pp. 28-33.

In the land use area, this Court

“uniformly reject[s] the proposition that

diminution in property value, standing alone,

can establish a_ taking." Penn Central,

supra, 438 U.S. at 133. This is true even

where the challenged regulation prohibits the

most profitable or beneficial use of the

property. Id. at 124-125. See also

Goldblatt_v. Hempstead, 369 U.S. 590, 592

(1962) (ban on using gravel pit as quarry).

Indeed, this Court "has repeatedly upheld

regulations that destroy ... real property

interests" and has never required the courts

to calculate whether a specific individual has

suffered burdens in excess of benefits

received. Keystone, supra, 480 U.S. at 488

n.18 and 491 n.21. See also Andrus v.

Allard, 444 U.S. 51 (1979); United States v.

Central Eureka Mining Co., 357 U.S. 155

(1958); Village of Euclid v. Ambler Realty

Co., 272 U.S. 365 (1926).

In evaluating the economic impact of a

government’ regulation on a_ particular

property, one must look to the property as a

whole (Keystone, supra, 480 U.S. at 497,

quoting, Penn Central, supra, 438 U.S. at

130-131). Only where the economic impact of

a government regulation so adversely affects

an owner's property rights or so interferes

with distinct "investment- backed

expectations" that an owner is deprived of

any "economically viable use of his land",

can there be said to be a taking. Keystone,

supra, 480 U.S. at 495, 499. See

Penn Central, supra, 438 U.S. at 127-128.

In fact, reductions of values of more than

90% have been held constitutional. !?

12the courts have’ repeatedly sustained

government regulations which have caused

radical reductions in property values. . See,

e.g., Village of Euclid, supra (75% reduction

in property value); Hadacheck v. Sebastian,

supra (92.5% reduction in property value,

from $800,000 to $60,000); Park Avenue

Tower Associates v. City of New York, 746

F.2d 135 (2d Cir., 1984), cert. denied, sub

nom. 40 Eastco v. City of New York, 470

U.S. 1087 (1985) (developer's profit

expectations may be frustrated); William C.

Haas & Co. v. City of San Francisco, 605

F.2d 1117 (9th Cir., 1979), cert. denied,

445 U.S. 928, reh. denied, 446 U.S. 929

(1980) (95% reduction in property value,

from $2,000,000 to $100,000).

Accordingly, the lesser, but still

substantial, reductions in property values

resulting from laws’ requiring building

(Footnote Continued)

Oe FEO Cae arr

In light of the case law, it is clear that

the instant complaint fails to state a claim.

It does not allege that their properties as a

whole have been rendered valueless by the

City's asbestos laws and regulations, but

merely that the value of their properties has

been "substantially impair[ed] and

diminish[ed]" because of the costs and

obligations of asbestos abatement (A37).

Such allegations are insufficient because they

do not establish that petitioners have been

deprived of economically viable use of their

property.

(Footnote Continued)

owners to comply with new public health and

safety measures have certainly not been

found to constitute a_ taking. Queenside

Hills Realty Co. v. Saxl, supra (cost of

compliance equalling 30% of full market value

of property); Tenement House Dept. of City

of New York v. Moeschen, 179 N.Y. 325

(1904), aff'd, 203 U.S. 583 (1906) (cost of

compliance equalling approximately 10% of

property value).

Significantly, petitioners nowhere claim

that they can no longer profitably operate

their buildings for office space or otherwise.

Absent such. allegations, the complaint

literally fails to state a claim "[b]Jecause

[the] test for regulatory takings requires

[the court] to compare the value that has

been taken from the property with the value

that remains in the property...." Keystone,

supra, 480 U.S. at 495, 497 (plaintiffs'

burden of proving taking "especially steep"

where they failed to claim that their mining

operations, or any specific mine, had been

unprofitable since the passage of the

challenged law).

With respect to interference with any

"distinct investment-backed expectations"

(Pet., p. 11), it is clear that petitioners

were, and are, not entitled to expect that

their property could be operated indefinitely

independent of future public health and

safety requirements. See, ante, pp. 24-35.

Moreover, the City's asbestos removal laws

and regulations do not prohibit what must be

regarded as_ their primary expectation

regarding the use of the property: the use

of their buildings for office space. See

Penn Central, supra, 438 U.S. at 136.

Unlike government regulations which

prevent property from being used for its

intended or desired purpose, the challenged

laws and regulations merely condition their

ability to alter portions of their buildings in

compliance with certain public health and

safety measures. Petitioners have it within

their power to entirely avoid the costs and

obligations associated with asbestos

abatement, by foregoing any alteration work

which would disturb "friable" asbestos.

While painting and new carpeting alone might

bring a less favorable rental than a complete

renovation, it is clear that the City's

asbestos laws and _ regulations have _ not

deprived these Manhattan office properties of

any economically viable use.

In sum, petitioners have not and cannot

meet their burden of showing that their

property has been’ deprived of any

economically viable use. At the most, they

have alleged a "mere diminution" in their

property value, which cannot establish a

taking. Penn Central, supra. Petitioners

have not been prevented from continuing to

use their properties for their intended

purpose -- office buildings -- much less

been prevented from using their properties

for any other economically viable use. Nor

have they shown that their properties have

been rendered valueless and cannot be sold,

nor even that they are prevented them from

operating their office buildings at a profit.

Thus, the complaint fails to state a claim for

ot? Ri ot ae Bite A a SO Penal wis

an unconstitutional taking as a matter of

law.

3. A Variance Process is Available.

Petitioners' claim fails for one final

reason. Although they do not acknowledge

it (Pet., passim), there is available a

variance provision, Local Law No. 46 of

1988. N.Y.C. Admin. Code, §24-146.1(i)

ante, pp. 15-16. Over $40,000,000.00 of the

alleged loss in petitioners’ complaint are lost

"future" costs and lost "future" rents

(A35-A36, 135-37, see Pet., p. 4, n.3).

In light of this variance process, petitioners’

challenge is premature as to all those claims

and is not ripe for review. Williamson

County Regional Planning Commission §yv.

Hamilton Bank of Johnson City, 473 U.S.

172, 186 (1985). There, this Court

reiterated that "a claim that the application

of government regulations effects a taking of

property interest is not ripe until the

Sl a eh et ee *

Pd PA nlite lll

government entity charged with implementing

the regulations has reached a final decision

regarding the application of the regulations

to the property at issue." Id. at 186. See

also Hodel v. Virginia Surface Mining and

Reclamation Association, 452 U.S. 264,

294-295, 297 (1981); Agins v. Tiburon, 447

U.S. 255, 260-261 (1980); Willing v. Chicago

Auditorium, 277 U.S. 274 (1928); Village of

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

384 (1926).

In conclusion, given the individual

inquiry necessary in takings analysis, this

Court adheres to the principle that "the

constitutionality of statutes ought not be

decided except in an actual factual setting

that makes such a_ decision necessary."

Pennell v. City of San Jose, supra, 485

U.S. at 9-10, 15. Thus, the instant case is

not ripe for review.

For all the above reasons, the petition

for a writ of certiorari should be denied.

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED.

April 23, 1990.

Respectfully submitted,

VICTOR A. KOVNER,

Corporation Counsel of

the City of New York,

Attorney for Respondents.

LEONARD J. KOERNER, *

PAMELA SEIDER DOLGOW,

JULIAN BAZEL,

ELIZABETH S. NATRELLA,

of Counsel.

*Attorney of Record

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