Petition for Writ of Certiorari — McGovern v. Town of Yorktown

oh |} Bupreme Court, U.S,

yD? FILED

LY) APR 15 1992

No. DIBIOE OF THE CLERK

In The

Supreme Court of the United States

>_>

October Term, 1991

JOHN McGOVERN, CARL SHUBERT and NAT SILVER,

Petitioners,

vs.

TOWN OF YORKTOWN, TOWN BOARD OF YORKTOWN

and NANCY ELLIOTT, NEAL BAILENSON, GARY AJELLO,

BARBARA WILKENS and ALBERT HAMMOND, sued both

individually and as members of the Town Board of Yorktown,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF NEW YORK

KENNETH F. McCALLION

Counsel of Record

PETER H. McCALLION

Attorneys for Petitioners

Garrison’s Landing

Garrison, New York 10524

(914) 424-3711

1956

*NJ (908) 257-6850°(800) 3 APPEAL®NY (212) 840-4640eMA (617) 542-1114

tz

TARPS ate, ine. DC (202) 783-7288ePA (215) 925-6500eUSA (800) 5 APPEAL

QUESTIONS PRESENTED

I. Did the court below err in finding that the local law which

increased the minimum lot size of the petitioners’ property from

one-half acre to four acres was not a taking of property without

just compensation?

II. Did the court below err in finding that the upzoning by

800% was not a taking of property without just compensation,

where the petitioners had a contract to sell the property for

$1,200,000 before the upzoning, and due to the upzoning the sale

was made impossible?

III. Did the court below err in finding that there was no

violation of due process or the Takings Clause, although the stated

purpose of the upzoning was because of an inadequate road, and

the petitioners would not have used this road for access to their

property?

IV. Did the court below in finding there was no violation

of due process or the Takings Clause, despite the fact that the

upzoning of the petitioners’ property was designed to accomplish

objectives different from those stated by the Town Board, namely

to win re-election and to attempt to force the petitioners to provide

affordable housing?

V. Did the court below err in finding that there was no

violation of equal protection, where the local law made two-thirds

of the parcels within the new zoning district non-conforming, and

the town admitted that the upzoning was specifically directed at

the petitioners’ property?

VI. Did the court below err in finding that the upzoning did

not constitute spot zoning?

VII. Did the court below err in finding that the petitioners

were not deprived of their constitutional rights under color of law?

ul

TABLE OF CONTENTS

Page

Questions Preeenees «oa 5.6 us Gina ee eee i

Fable of COMtGONS ... 66.Jc55 54550 Rb eee il

Walbte OF CRMMONE os eck ns bee eee il

Copinnias BeOW ow ics onc bea eae eee ee l

Stanement Of JurigGiCGh. o.06xc ines aces anseeiees 2

Constitutional and Statutory Provisions Involved ....... 2

statement Of FOC «occas walieusns eee eee 2

Reasons for Granting the Wit . «55.5000 esu5s cons ees 3

5. Background... icc ccncduusexee eee 3

Il. Taking Without Just Compensation............. 6

tif. Bowel PrOOOGOe «<< ic sigs ctee ene eae 21

[V. Due PrObNSS .. oc. dc oeue cee ee eee ee 26

COMCHIMION .. . 6.65.45. deeb ee ie ee eee eee 30

TABLE OF CITATIONS

Cases Cited:

Agins v. Tiburon, 447 U.S. 255 (1980) ............... 6, 7,9

iil

Contents

Page

Armstrong v. United States, 364 U.S. 40 (1960) ........ 5, 10

Arverne Bay Construction Company v. Thatcher, 278 N.Y.

co RS ee ie ca |): a 22

Charles v. Diamond, 41 N.Y. 2d 318, 392 N.Y.S. 2d 594

eC cet ek ae Gok shad eka aw ieee a bee Ken 28

Chicago Burlington & Quincy R.R. Co. v. Chicago, 166 U.S.

Be Ee ER ys rr 4

Dowsey v. Kensington, 257 N.Y. 221, 177 N.E. 427 (1931)

ea Led vena eke anes ce hes een eew duets 21

First Evangelical Lutheran Church of Glendale v. County of

Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed.

Pr cages 6h baw en kh ce sk ees ees 5, 6, 18, 20

French v. City of New York, 39 N.Y. 2d 592, 385 N.Y.S.

GT aa 19, 29

Fulling v. Palumbo, 21 N.Y. 2d 30, 286 N.Y.S. 2d 249 (1967)

SCR Gee ett eck wha seks savas wealce wa uns 24

Grimpel Associates v. Cohalan, 41 N.Y. 2d 431, 393 N.Y-.S.

a eS Ss lig sede a Sinca-ecn 18

J.E.D. Associates, Inc. v. Atkinson, 121 N.H. 581, 432 A.2d

eg Le hee Ges oka RON Ss oe be wD 1]

Kaiser Aetna v. United States, 444 U.S. 164, 600 S. Ct. 383

Contents

Page

Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S.

ee ee Ec CG yh ee ce ake we cake ce 25

Lutheran Church in America v. City of New York, 35 N.Y.

po es GR ge et, ea eee eee 16, 19

Nollan v. California Coastal Commission, 107 S. Ct. 3141,

Oe a ee PE cs ek ie ck ks beeda Wh ealaeks

rene hss 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 2, 26

Northern Westchester Professional Park v. Town of Bedford,

60 N.Y. 2d 492, 470 N.Y.S. 2d 350 (1983) ......... 5

Penn Central Transportation Co. v. New York City, 438 U.S.

Re UD he hin 5 OE Hea awd cea ees 5, 9, 10

Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 43 S.

a) Mg Oe a. reer 15, 16

Rockdale Construction Corp. v. Cedarhurst, 301 N.Y. 519,

ff ee & Si.) rere rrr rer 22, 23

Seawall Associates v. City of New York, 138 Misc. 2d 96,

$23 N.Y.S. 2d 353, aff'd, 74 N.Y. 2d 92, 544 N.Y.S.

Be ee RE Gans oN Cis ee een eee eueeeaee eee 18, 20

Spanier v. Town of Huntington, 19 Misc. 2d 979, 188 N.Y.S.

28 SEi GH. Ch. Settee Cay. ISTP) «wc ccc cc ccwaccess 17

Stevens v. Town of Huntington, 20 N.Y: 2d 352, 283 N.Y.S.

DRIER SUC Lines eu ek ee dela ne b abe oaks 28

Contents

Page

Udell v. Haas, 21 N.Y. 2d 463, 288 N.Y.S. 2d 888 (1967)

Pe Ee ee eR aR ay Rr a At gee 24, 25

Vernon Park Realty, Inc. v. City of Mount Vernon, 307 N.Y.

Gers Se Pete ee FE ROPE aos eb cee eee eee 23, 24

Statutes Cited:

Be a ee See Sk eae a ees eee 2

a ee ee: Pee re re ere erate ee peo sr 2

United States Constitution Cited:

er erry

POR FRO 55k 6 eo es 25g eee 3,4

Other Authorities Cited:

New York Civil Practice Law & Rules:

S PPOPNED vss osc sey iseaenenns eee ereeuee Ts 3

GP POURED vc dees caxdueaeieeeuen ene oie ree ee 3

APPENDIX

Appendix A — Motion for Leave to Appeal of the Court of

Appeals, State of New York Dated January 16, 1992

vi

Contents

Page

Appendix B — Notice of Appeal of the Court of Appeals,

State of New York Dated October 24, 1991 ........ 2a

Appendix C — Decision and Order of the Supreme Court

of the State of New York, Appellate Division, Second

Department Dated April 8, 1991 .................. 3a

Appendix D — Decision and Order of the Supreme Court

of the State of New York, County of Westchester Dated

Qossber 03: Ts 6 ish0cicekteaieieae Sa

Appendix E — Constitution and Statutory Provisions

GONE a v6n cea Se owen 4 8o8 see ee 16a

No.

In The

Supreme Court of the United States

October Term, 1991

JOHN McGOVERN, CARL SHUBERT and NAT SILVER,

Petitioners,

LAY

TOWN OF YORKTOWN, TOWN BOARD OF YORKTOWN

and NANCY ELLIOTT, NEAL BAILENSON, GARY AJELLO,

BARBARA WILKENS and ALBERT HAMMOND, sued both

individually and as members of the Town Board of Yorktown,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT

OF APPEALS OF NEW YORK

OPINIONS BELOW

The opinions of the Court of Appeals of the State of New

York are reported at 79 N.Y. 2d 753 and 78 N.Y. 2d 1071, 582

N.E. 2d 604, 576 N.Y.S. 2d 221. The opinion of the Supreme

Court of the State of New York, Appellate Division, Second

Judicial Department, is reported at 172 A.D. 2d 594, 570 N.Y-S.

2d 946. The opinion of the Supreme Court of the State of New

York, County of Westchester, is unreported.

Z

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals of the State of New

York was made and entered on January 16, 1992. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1257 (3).

This Court has jurisdiction of the proposed appea! because

the appeal is from a final determination of the highest court of

the State of New York, and it involves a case where the rights

to due process, equal protection, and against taking of property

without just compensation are claimed under the Constitution

of the United States. It also involves a question of deprivation

of civil rights under color of law.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth and Fourteenth Amendments to the United States

Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983

are involved in this case (see Appendix E).

STATEMENT OF FACTS

The complaint was dismissed by the Supreme Court,

Westchester County after Judge Sondra Miller granted defendants’

motion for summary judgment, denied plaintiffs’ motion for

summary judgment, and declared the local law in question, which

raised the zoning on plaintiffs’ property from one half acre to

four acres, constitutional. The decision and order of Judge Miller,

a copy of which is attached in the Appendix, was entered on

October 13, 1989.

Plaintiffs appealed to the Appellate Division, Second

Department. The Appellate Division affirmed the order of Judge

Miller. The decision and order of the Appellate Division, a copy

of which is attached in the Appendix, was entered on April 8, 1991.

Plaintiffs appealed to the Court of Appeals of the State of

New York under § 5601(b)(1) of the New York Civil Practice

Law and Rules, on the basis that the order of the Appellate

Division finally determined an action where there was directly

involved the construction of the Constitution of the State and

of the United States.

The Court of Appeals of the State of New York, by order

dated October 24, 1991, a copy of which is attached in the

Appendix, dismissed the appeal sua sponte, upon the ground that

no substantial constitutional question was directly involved.

The plaintiffs made a motion for leave to appeal to the Court

of Appeals of the State of New York under New York Civil

Practice Law and Rules § 5602(a). The motion was denied by

order dated January 16, 1992, a copy of which is attached in the

Appendix.

REASONS FOR GRANTING THE WRIT

BACKGROUND

The questions involved in this proposed appeal merit review

by this Court, as they are currently a subject of evolving law which

are being examined by this Court. The subject of taking of property

by regulation is one which is of public importance, due to the

increasing burdens placed upon property owners by government.

This case involves the construction of the Due Process and

Equal Protection Clauses of the Fifth Amendment to the United

States Constitution, made applicable to the States through the

Fourteenth Amendment, and the Taking Without Just

Compensation Clause of the Fifth Amendment to the United States

Constitution, made applicable to the States by the United States

Supreme Court in Chicago Burlington & Quincy R.R. Co. v.

Chicago, 166 U.S. 226, 17 S. Ct. 581 (1987).

The local law which is in question on this appeal raised the

zoning on the plaintiffs’ thirty acre property from one half acre

to four acres, an increase of 800%. The magnitude of the increase

alone is enough to render the law invalid, as such an increase

has never been sustained by the courts of any state. What makes

the law particularly pernicious, however, is the fact that it was

aimed specifically at the plaintiffs’ property and one other thirty

acre property. Zoning measures which single out one or two

property owners to bear the burden of a municipal policy, in this

case the policy of limiting further development of a district which

has already been developed as a commercial and multi-family

district, violate both the Takings Clause and the Equal Protection

Clause. Nollan v. California Coastal Commission, 107. Ct. 3141,

97 L. Ed. 2d 677 (1987).

The local law was enacted in reaction to the proposed

development of the plaintiffs’ property under the then existing

zoning. The plaintiffs executed a contract to sell their properiy

for $1,200,000 in 1987, contingent upon the zoning remaining

as half acre. The Town was apprised of this contract, and reacted

by upzoning to four acres, which rendered the sale impossible.

Although the local law purports,to affect fifty-two parcels,

in tact about two-thirds of those parcels are tess than four acres,

so that the law renders the majority of parcels nonconforming.

The Planning Department acknowledged that the reason for the

upzoning was ‘‘the large vacant parcels’’ in the Indian Hill area

when it recommended upzoning to one acre.

The plaintiffs’ property and the adjoining property of Indian

Hill Associates, Inc. make up 60 of the 180 acres in the new district.

vO

These were the only properties on which development had been

proposed.

Where a zoning measure clearly is directed specifically at one

Or two owners, as here, the Takings Clause should act ‘‘to bar

Government from forcing some people to bear the 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).

The Planning Department was pressured by the Town Board

to issue a second report, dated the same day as the first report,

which recommended upzoning to two acres. But even this

recommendation was ignored by the Town Board, which was

facing re-election in November, 1987, and wanted to win the votes

of the residents in the Indian Hill area who wanted to keep the

undeveloped parcels vacant.

Land use regulation which arbitrarily discriminates against

a property owner does not ‘‘substantially advance a legitimate

State interest’’. Nolian, supra. In the absence of such substantial

advancement of a legitimate state interest, the Takings Clause

requires that the measure either be invalidated, with compensation

to the property owner for the period of the taking, or that the

property owner be fully compensated for the taking. Penn Central

Transportation Co. v. New York City, 438 U.S. 104, 127 (1978);

First Evangelical Lutheran Church v. County of Los Angeles,

482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987).

Where there is a violation of the Equal Protection Clause,

such as in this case, where the plaintiffs were singled out to bear

the brunt of a drastic upzoning measure so that the Town Board

could win re-election, there need be no showing of a complete

confiscation. Northern Westchester Professional Park v. Town

of Bedford, 60 N.Y. 2d 492, 494, 470 N.Y.S. 2d 350 (1983).

The fact that the plaintiffs’ property diminished in value from

$1,200,000, the contract price, to a point where it was virtually

unmarketable, shows that there has also been a severe diminution

in value, such as to render the measure invalid under the second

prong of the Takings Clause. Where an owner has been denied

an economically viable use of his land, even if the measure

substantially advances a legitimate state purpose, it violates the

Takings Clause. Agins v. Tiburon, 447 U.S. 255, 260 (1980).

Where a taking question is involved, the standard to be

applied is not the ‘‘rational basis’’ standard which otherwise applies

to state action, but the higher ‘‘substantial advancement of a

legitimate state interest’’ standard. Nollan v. California Coastal

Commission, 107 S. Ct., 3147, footnote 3.

Therefore, the cases cited by the respondents in the courts

below, to the effect that the petitioners cannot prevail unless they

prove that the law in question has no rational basis, have been

overruled by the explicit holding of the United States Supreme

Court in Nollan.

In addition, the United States Supreme Court in Nol/an and

First Evangelical Lutheran Church v. County of Los Angeles,

482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987) has made

it clear that a complete confiscation, or a taking by regulation

which leaves only a bare residue of value, is not required. The

test. is whether the property owner has been denied an

‘‘economically viable use’’ of his property.

II.

TAKING WITHOUT JUST COMPENSATION

A zoning regulation is unconstitutional as a violation of the

Takings Clause if it does not substantially advance a legitimate

arian aati

state interest or if it renders the property unsuitable for any

reasonable income productive use. In the case at bar, there is a

taking under both of these standards.

The United States Supreme Court has emphasized the need

for a sufficient relationship between the regulation and the property

regulated in a takings context in Nollan v. California Coastal

Commission, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987). The Coastal

Commission in that case conditioned the plaintiffs’ building permit

upon the grant of an easement to the public to cross their beach.

The court recognized that, despite the fact that the condition

imposed was a regulation and not an exercise of eminent domain,

the measure involved the question of whether there was a taking

of property. Because there was not a sufficient connection between

the regulation and the state interest in this case, it was found

that the regulation did not substantially advance the state interest,

and therefore was invalid.

The court quoted Agins v. Tiburon, 447 U.S. 255, 260. 100

S. Ct. 2138, 2141 (1980) in stating that land use regulations must

‘substantially advance legitimate state interests’? and must not

“‘deny an owner economiically viable use of his land.’’ In the

takings field the court applies a higher standard than that applied

in a non-taking due process or equal protection case, the Nollan

court declared.

When dealing with a takings case, the court requires:

. that the regulation ‘‘substantially advance’’

the ‘‘legitimate sitate interest’? sought to be

achieved, Agins v. Tiburon, 447 U.S. 255, 260,

100 S. Ct. 2138, 2141, 65 L. Ed. 2d 106 (1980),

not that ‘‘the State ‘could rationally have decided’

the measure adopted might achieve the State’s

objective’. [Brennan dissent], quoting Minnesota

v. Clover Leaf Creamery Co., 449 U.S. 456, 466,

101 S. Ct. 715, 725, 66 L. Ed. 659 (1981). Justice

Brennan relies principally on an equal protection

case, Minnesota v. Clover Leaf Creamery Co.,

supra, and two substantive due process cases,

Williams v. Lee Optical of Oklahoma, Inc., 348

U.S. 483, 487-488, 75 S. Ct. 461, 464-465, 99 L.

Ed. 563 (1955), and Day-Brite Lighting, Inc. v.

Missouri, 342 U.S. 421, 423, 72 S. Ct. 405, 407,

96 L. Ed. 469 (1952) in support of the standards

he would adopt. But there is no reason to believe

(and the language of our cases gives some reason

to disbelieve) that so long as the regulation of

property is at issue the standards for takings

challenges, due process challenges, and equal

protection challenges are identical; any more than

there is any reason to believe that so long as the

regulation of speech is at issue the standards for

due process challenges, equal protection challenges,

and First Amendment challenges are identical.

Goldblatt v. Hempstead, 369 U.S. 590 (1962), does

appear to assume that the inquiries are the same,

but that assumption is inconsistent with the

formulations of our later cases.

107 S. Ct. 3147, footnote 3.

The Supreme Court has in this case clarified what the language

of its cases dealing with takings of property after 1962 has implied.

Now, there can be no question that the standard to be applied

in these cases is higher than the ‘‘rational basis’’ test used to justify

State action in ordinary due process and equal protection cases.

Instead, the standard is the substantial advancement of a legitimate

State interest. The first question to be determined is whether the ;

case at bar is a case involving a taking of property, rather than

ne

a regulation of property which violates only due process and equal

protection. The court made clear at the outset of No/lan that a

taking may occur as a result of regulation, even with no physical

confiscation.

One type of taking consists of a regulation that so drastically

interferes with the owner’s use of his property that it denies him

‘‘economically viable use of his land.’’ Agins v. Tiburon, 447

U.S. 255, 260 (1980). Another type is where the restriction is not

‘‘reasonably necessary to the effectuation of a substantial

government purpose.’’ Penn Central Transportation Co. v. New

York City, 438 U.S. 104, 127 (1978). A third type is where the

owners are ‘‘singled out to bear the burden of [the state’s] attempt

to remedy these problems, although they had not contributed to

it more than other’’ landowners. No/llan v. Coastal Commission,

107 S. Ct. 3147, footnote 4.

The plaintiffs’ have been denied economically viable use of

their land. In addition, as previously discussed, the upzoning was

intended purportedly to avoid the necessity of using Indian Hill

Road. The plaintiffs, however, own an easement onto Route 6

which will not necessitate their using Indian Hill Road. Therefore,

the law in question, as applied to the plaintiffs’ property, is not

‘‘reasonably necessary to the effectuation of a substantial

governmental purpose.’’ Penn Central Transportation Co. v. New

York City, 438 U.S. 104, 127 (1978).

The case at bar also constitutes a taking under the third

definition enunciated by the Nollan court. The plaintiffs have

not contributed to the problems associated with development such

as traffic and demand for municipal services in the Jefferson Valley

area. The Town of Yorktown has created these problems, which

are a necessary offshoot of the long-standing decision to

commercialize and allow multi-family development in the

neighborhood. The Town cannot now burden the plaintiffs with

10

the denial of a use of their property which has been permitted

during all the years of intense development around them, and

which none of their neighbors have been asked to suffer.

As the Supreme Court stated in Armstrong v. United States,

364 U.S. 40, 49 (1960), one of the main reasons for the Takings

Clause is ‘‘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.’’ See also, Penn Central

Transportation Co. v. New York City, 438 U.S. 104, 123 (1978).

The second type of taking is the situation dealt with in Nollan.

The court admitted that the purposes of the regulation, to prevent

congestion on the public beaches, and to provide aesthetic

enjoyment for the public, were legitimate state purposes.

But the Nol/an court pointed out a. very important aspect

of the rule that the regulation must serve a state purpose. As the

court put it:

The evident constitutional propriety disappears,

however, if the ... prohibition utterly fails to

further the end advanced as the justification for

the prohibition. When that essential nexus is

eliminated, the situation becomes the same as if

California law forbade shouting fire in a crowded

theater, but granted dispensations to those willing

to contribute $100 to the state’s treasury.

107 S. Ct. 3148.

The analogy to the case at bar is quite apt. In the Town of

Yorktown, an affordable housing policy was enacted, which allows

a developer to achieve an increase in density beyond that otherwise

allowed by the zoning code, if he agrees to build some housing

for lower income buyers.

a

1]

The purpose of the upzoning to four acres was supposedly

to decrease residential densities. But the Town allows increased

densities to provide for affordable housing. The paradox is that

the upzoning from one half to four acre zoning is in itself the

most significant factor in making housing unaffordable to those

wishing to make their homes in the area. To grant a dispensation

to those willing to sell homes at below cost, for the purpose of

achieving affordable housing, is directly contrary to the stated

purpose of upzoning.

The Town of Yorktown, in effect, has allowed those who

pay the cost of selling houses at below market prices the

opportunity to shout fire in a crowded theater.

What is the reasoning behind this apparently contradictory

set of policies? Perhaps the Town Board feels that increasing the

lot sizes in a limited area, with all its attendant political overtones,

might render the affordable policies of the Town more palatable

to the electorate. If so, the legitimate public purpose of

encouraging low-cost housing has fallen upon the plaintiffs alone,

and is therefore a taking under the third principle enunciated in

Nollan.

But the Nollan case creates a logical system of analysis which

avoids the need to look into the reasoning process of public

officials. The regulation is stated to be designed to reduce

residential densities. The regulation is waived if the owner agrees

to conform to an unrelated purpose of the Town, namely, creation

of affordable housing. The building restriction is therefore not

a valid regulation of land use, but ‘‘an out-and-out plan of

extortion.’’ J.E.D. Associates, Inc. v. Atkinson, 121 N.H. 581,

584, 432 A.2d 12, 14-15 (1981); see Brief for United States as

Amicus Curiae 22, and n. 20. .

An investor who bought land under half acre zoning and

12

—

finds the zone changed to four acres is thus faced with two

alternatives. He can try to market mini-estates in a commercial

and multi-family neighborhood, or he can achieve a 50% increase

in density, which returns the zoning, in effect, to two acres, if

he submits to the requirement that some of the houses he builds

will be sold below cost. The affordable housing law, with its trade-

off of density for low-cost housing, was passed a few months

after the upzoning to four acres, in January, 1988.

As the Nollan case states:

the lack of nexus between the condition and the

original purpose of the building restriction converts

that purpose into something other than what it was.

The purpose then becomes, quite simply, the

obtaining of an easement to serve some valid

governmental purpose, but without payment of

compensation. Whatever may be the outer limits

of ‘legitimate state interests’’ in the takings and

land use context, this is not one of them.

107 S. Ct. 3148.

What is the effect of such a method of land use regulation?

Precisely the opposite of the stated goal of the Town in enacting

the local law in question, and it is this fact that, as in Nollan,

makes the regulation unconstitutional.

As the court in Nollan stated:

One would expect that a regime in which this kind

of leveraging of the police power is allowed would

produce stringent land-use regulation which the

State then waives to accomplish other purposes,

leading to lesser realization of the land-use goals

13

purportedly sought to be served than would result

from more lenient but (non-tradeable) development

restrictions. Thus, the importance of the purpose

underlying the prohibition not only does not justify

the imposition of unrelated conditions for

eliminating the prohibition, but positively militates

against the practice.

107 S. Ct. 3148, footnote 5.

Prior to the enactment of the two regulations in September,

1987 and January, 1988 by the Town of Yorktown, the Supreme

Court had declared such schemes unconstitutional. Under the clear

and unambiguous rule of No/lan, the upzoning/downzoning, quid

pro quo formula must be found invalid, and the law in question

held inapplicable to the plaintiffs’ property.

The condition imposed to increase density amounts to a

confiscation of property, because the affordable housing law

requires houses to be sold for below cost in order to qualify for

the bonus. After paying normally high prices for land,

improvements, and construction costs, a builder will lose money

on each of these units. But the incentive is that he will have up

to 50% more units to sell. Without the precedent upzoning, the

owner is faced with a business decision which he is free to accept

or reject. ‘

The confiscatory nature of the two ordinances, however, is

produced by their relationship. The upzoning of the plaintiffs’

property by 800% creates the taking, not only because of the

obvious drastic reduction in value, but because the only way out

offered, other than recourse to the courts, is to give away some

land at a loss in order to alleviate partially the horrendous impact

of the upzoning.

14

As the Supreme Court stated in Nollan:

our cases describe the condition for

abridgement of property rights through the police

power as a ‘‘substantial advancing”’ of a legitimate

State interest. We are inclined to be particularly

careful about the adjective where the actual

conveyance of property is made a condition to the

lifting of a land use restriction, since in that context

there is a heightened risk that the purpose is

avoidance of the compensation requirement, rather

than the stated police power objective.

107 S. Ct. 3150.

In Nollan, the benefit was to allow the public to have lateral

access to the beaches by permitting them to cross private property.

This is not a bad thing, nor is providing affordable housing bad.

The way California obtained the easement it desired was to

condition the Nollans’ building permit on their acquiescence to

the public use. In the case at bar, the way Yorktown obtains

property for affordable housing is by extorting concessions from

owners after a drastic upzoning. It conditions relief from the

oppressive zoning upon the owners’ grant of land at little or no

cost to those who otherwise could not afford to purchase a home.

The public may indeed be served in both cases. However,

that does not mean that the plaintiffs can be compelled to

contribute to the fulfillment of these public purposes without

compensation. Yorktown, as California, ‘‘is free to advance its

‘comprehensive program,’ if it wishes, by using its power of

eminent domain for this ‘public purpose,’ ’’ Nollan, 107 S. Ct.

3150, but if it wants to do so, it must pay for the plaintiffs’

property.

|

:

;

15

The Supreme Court in Nollan echoed the concerns expressed

by Justice Holmes sixty-five years earlier in Pennsylvania Coal

Company v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322

(1922). The court in that case struck down a law which forbade

mining in such a way as to cause subsistence of any buildings

or streets. The only way to achieve the public purpose in this

case, the court held, was to pay the owner for the property which

was thus taken.

The circumstances surrounding the passage of the law in

Pennsylvania Coal were similar to those in the case at bar. It

was ‘‘passed at the insistence of a determined and organized

minority, designed to confiscate for their benefit the rights of

producers of property, and passed by a legislature in time of

political stress, in its anxiety to secure the votes controlled by

the advocates of the measure . . . To protect a complaisant public

from such laws is one of the primary functions of the courts.’’

Argument for Plaintiff, 260 U.S. 393, 396.

The law in question was designed to protect the interests of

competitors of the coal industry, not to really protect the public.

The law in question in the case at bar was similarly designed to

enhance the property values of the plaintiffs’ neighbors by

providing a greenspace, not to protect the public from the evils

of over-development.

Even assuming a public purpose, however, the only way to

accomplish it would be to pay for the property, the court held.

Justice Holmes wrote:

The protection of private property in the Fifth

Amendment presupposes that it is wanted for

public use, but provides that it shall not be taken

for such use without compensation... When this

16

seemingly absolute protection is found to be

qualified by the police power, the natural tendency

of human nature is to extend the qualification more

and more until at last private property disappears.

But that cannot be accomplished in this way under

the Constitution of the United States.

The general rule at least is, that while property

may be regulated to a certain extent, if regulation

goes too far it will be recognized as a taking. We

are in danger of forgetting that a strong public

desire to improve the public condition is not

enough to warrant achieving the desire by a shorter

cut than the constitutional way of paying for the

change.

260 U.S. 415, 416.

The State of California in No/lan, the State of Pennsylvania

in Pennsylvania Coal, and the Town of Yorktown in the case

at bar were all acting in their enterprise capacity in enacting the

laws which on their face are merely regulatory. When a state or

municipality acts in its enterprise capacity, despite the facade of

regulation, the courts should find there is a taking without just

compensation when the value of the affected property is

significantly diminished. Lutheran Church in America v. City of

New York, 35 N.Y. 2d 123, 359 N.Y.S. 2d 7 (1974).

In Lutheran Church, the City designated the Morgan house,

owned by the church, as an historic landmark. The church was

prevented by the Landmark Law from altering or destroying the

building, which had become inadequate for the church’s purposes.

The court found that the ordinance was unconstitutional as

a taking of property. It pointed out the difference between true

17

regulation and a case such as this, where the government acts

in an enterprise capacity. True regulation by zoning, the court

found, consists in acting as an arbitrator between neighbors to

ensure that the use of an owner’s land harmonizes with other

uses in the district.

The regulation in question in the case at bar does quite the

opposite, by creating an island of four acre lots in a sea of

commercial, multi-family, and small lot uses. The reason for the

regulation was either to create a greenspace, if the owner decided

not to participate in the affordable housing scheme, or to achieve

the goal of obtaining property at no cost for affordable housing.

Either goal was designed not to ensure the harmony of plaintiffs’

use with the surrounding uses, but to achieve a distinct

governmental goal. Such a use of the zoning power falls within

the scope of the government’s enterprise capacity.

The upzoning in the case at bar was undertaken by the Town

in its enterprise capacity, because it was not intended to mediate

the conflicting desires of its citizens and accomplish the goals of

a comprehensive zoning plan, but to grant benefits to one set

of individuals without any reciprocal benefit to the plaintiffs. The

neighbors who enjoy the maintenance of the greenspace on

plaintiffs’ property, or those who take advantage of the extorted

affordable housing gift, would benefit from the law, but the

plaintiffs ought not be forced.to pay for these benefits to others

without compensation.

The most obvious form of taking is where the restriction so

drastically reduces the value of the property as to amount to a

confiscation, which must be paid for by the government in order

to be valid. A case of an upzoning from one eighth acre to one

acre lots was found to be unconstitutional as a confiscation in

Spanier v. Town of Huntington, 19 Misc. 2d 979, 188 N.Y.S.

2d 381 (S. Ct. Suffolk Cty., 1959). This case presents the same

18

800% increase as in the case at bar. The 800% increase should

in the instant action be similarly declared to be a taking of property

without just compensation, based on the magnitude of the

diminution in value.

As in the case at bar, the iot size required by the new zoning

was not in accordance with the surrounding neighborhood, and

the cost of the housing under the new zoning would have to be

substantially higher than the cost of the existing homes. The

obvious difficulty in marketing such expensive homes in a

neighborhood of moderately priced homes was taken into account

in the determination of confiscation.

Homes in the Indian Hill area have sold for modest prices,

from $110,000 to $160,000, recently. The price of homes on four

acre lots would have to be far higher, about $400,000, in order

to justify the significant development expenses. The plaintiffs,

therefore, would be forced to expend considerable amounts of

money to place houses on the market in the hopes that they could

sell houses which would be far more expensive than those existing

in the area today. This fact, combined with a ‘‘drastic reduction

in value tends to establish that the property is not reasonably suited

for the uses prescribed in the ordinance.’’ Grimpel Associates v.

Cohalan, 41 N.Y. 2d 431, 393 N.Y.S. 2d 373 (1977).

In First Evangelical Lutheran Church of Glendale v. County

of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d

250 (1987), this Court held that where there has been a deprivation

of property rights by regulation amounting to a taking of property

without just compensation, the courts should award monetary

damages for the loss of use of the property during the period

of the taking, even where the regulation is declared invalid.

This new precedent was recognized in Seawall Associates v.

City of New York, 138 Misc. 2d 96, 523 N.Y.S. 2d 353, aff'd,

19

74.N.Y. 2d 92, 544 N.Y.S. 2d 542 (1989). The statute in question

in this case prohibited the conversion, alteration or demolition

of single-room occupancy units, in an attempt to avoid an increase

in the homeless population of the city. The quesiion was whether

this regulation under the police power so severely restricted the

enjoyment of property rights as to amount to a taking for which

compensation must be paid.

The court noted that ‘‘according to the Court of Appeals,

a regulation may violate due process and not constitute a taking

(French, supra) or it may constitute both. (Lutheran in America,

supra).’’ 138 Misc. 2d 103. The element necessary to establish

a taking was the deprivation of the property’s ‘‘free use and

enjoyment or the power of disposition at the will of the owner.”’

Lutheran Church in America v. City of New York, 35 N.Y. 2d,

130, 359 N.Y.S. 2d 7.

The court found that there was a violation of due process

because the statute forced ‘‘the owner to assume the cost of

providing a benefit to the public without recoupment’’, quoting

French, 39 N.Y. 2d 596. This fact made the statute unjustifiable

as an exercise of the police power.

To determine whether there was a taking, however, the

government’s justification was found irrelevant. Property must

be paid for if taken regardless of the reason for the taking. Taking

was, before No/lan, defined as a frustration of investment-backed

expectations to a significant degree, so as to deny an owner

economically viable use of his land. After No/lan, a second part

was added to the takings test, namely, the requirement that there

must be a sufficient nexus between the ends and the means of

the regulation.

If a taking is found, under either of the two prongs of the

takings test, then the government must pay just compensation

20

‘‘even when an excessive police power regulation is only

temporary.’’ Seawall Associates v. City of New York, 138 Misc.

2d 96, 114. The court in Seawall found the statute in question

to constitute a taking, even though the plaintiffs could still make

some use of their property.

The court stated:

In Nollan, supra, the condition imposed upon the

petitioners, while diminishing the value of their

lot, did not deprive them of all reasonable use of

their property. The Supreme Court still found an

unconstitutional interference with the Nollan’s

property rights, warranting payment of just

compensation.

138 Misc. 2d 115.

As the Supreme Court stated in First Evangelical Lutheran

Church, ‘‘where the government’s activities have already worked

a taking of all use of property, no subsequent action by the

government can relieve it of the duty to provide compensation

for the period during which the taking was effective.’’ 107 S. Ct.

2389.

The application of the new rules to the case at bar require

that the plaintiffs be awarded damages for the loss of use of their

property between the date of the taking to the date that the court

rescinds the regulation. The regulation must be rescinded because

it denies the plaintiffs economically viable use of their land, and,

as discussed above, No/llan’s requirement of a relationship between

the regulation and the goal is lacking.

21

EQUAL PROTECTION

Because the law in question was directed at the plaintiffs’

property, imposing undue burdens upon them without a

corresponding enjoyment of any benefits, it violates the equal

protection clause. The law should be found invalid because it is

spot zoning, creating an island of large estate-sized lots in a

surrounding neighborhood of commercial and small residential

lots.

As the zoning map of the Town of Yorktown shows, the

new four acre zone on Indian Hill, which even within the zone

is comprised primarily of lots smaller than four acres, is

surrounded by office-business, industrial, retail-commercial,

quarter-acre, and multifamily zones. A regional shopping center,

the Jefferson Valley Mall, is across the street. Adjacent to the

parcel is Contractor’s Register, a large office complex.

The parcel is at the intersection of the Taconic State Parkway

and Route 6, the major north-south and east-west thoroughfares

in that part of the county. For miles in either direction along

Route 6, in addition to the shopping mall, are businesses,

apartment buildings and condominium complexes. One complex

alone, Jefferson Village, has about 1,000 units. This complex is

about one half mile from the plaintiffs’ property. To declare that

the plaintiffs’ property, after being zoned half acre while this entire

development process took place around it, should now become

an enclave of quiet and retirement for those seeking the seclusion

of large estates is to unconstitutionally burden the plaintiffs with

the belated desire to turn back the clock on the past twenty years.

Judge Lehman wrote, in Dowsey v. Kensington, 257 N.Y.

221, 231, 177 N.E. 427 (1931), ‘‘Certainly an ordinance is

unreasonable which restricts property upon the boundary of the

village to a use for which the property is not adapted and thereby

destroys the greater part of its value in order that the beauty of

the village as a whole may be enhanced.’’

In the case at bar, the Town long ago decided that this area

was Suitable for business and multi-family purposes. To now seek

to preserve a portion of this area as a greenspace, in order to

balance out to a small degree the commercial nature of the district,

is to impose a burden on the plaintiffs alone, for the sake of the

other residents and visitors to the neighborhood. When an

ordinance falls unduly upon one or two property owners, and

a burden which should be shared among the community becomes

that of an isolated individual, the courts should hold the measure

unconstitutional.

Judge Lehman again addressed this issue a few years later

in Arverne Bay Construction Company v. Thatcher, 278 N.Y.

222, 15 N.E. 2d 587 (1938). He stressed the fact that these cases

must be dealt with by application of the rule of reason. It was

unreasonable, the court found, to restrict the plaintiff to a

residential use when the entire neighborhood was used for

commercial purposes. While recognizing the need for long-range

planning, the court held that, ‘‘The legislative power of the State

is, however, not plenary, but is limited by the Constitution of

the United States and by the Constitution of the State.’’ 278 N.Y.

231.

In Rockdale Construction Corp. v. Cedarhurst, 301 N.Y.

519, 93 N.E. 2d 76 (1950), the Court of Appeals held that an

ordinance which prohibited the use of the plaintiff’s property for

business purposes was invalid, because it was located on a highway

with heavy traffic, and opposite the plaintiff's property business

uses were permitted. The Court found that the property would

be worth seven times as much if used for business purposes, and

23

this fact, combined with the fact that the restriction was

unreasonable, rendered the ordinance invalid. The discriminatory

nature of the law, together with the diminution in value, amounted

to a taking.

Rockdale Construction v. Cedarhurst, supra, is noteworthy

in that the diminution in value from the potential, reasonable

use of the property to its value under the ordinance in question

was considered to be a taking, even though the property could

be put to some use under the ordinance. The important finding

was that there was unfairness in terms of similar property being

treated dissimilarly. In the case at bar, there is also this basic

factor of inequity, and the fact that some use may be made of

the property should not prevent a finding of invalidity of the law

as applied to the plaintiffs’ land.

The Court of Appeals reaffirmed this principle in Vernon

Park Realty, Inc. v. City of Mount Vernon, 307 N.Y. 493, 121

N.E. 2d 517 (1954). The plaintiff in that case owned a parking

lot in the middle of a business district. He wanted to build a retail

shopping center on the property, but the City zoned it so that

it could be used only for a parking lot. The court held the

ordinance invalid, stating that, ‘‘However compelling and acute

the community traffic problem may be, its solution does not lie

in placing an undue and uncompensated burden on the individual

owner of a single parcel of land in the guise of regulation, even

for a public purpose.’’ 307 N.Y. 498. In the case at bar, it is

likewise impermissible to prevent the plaintiffs from devoting their

property to a use similar to that of other properties similarly

Situated.

Even within the new zoning district, most owners are

permitted to use their property as a non-conforming use, with

lots less than four acres. Other property adjacent to the new zone

is used for multi-family and commercial purposes. It is significant

24

to note that the court in Vernon Park struck down the ordinance

because of its discriminatory nature, even though the plaintiff

could have used his property for a parking lot.

The rule that even where an owner can make a profit, an

ordinance may be held invalid as a taking, was reiterated in Fulling

v. Palumbo, 21 N.Y. 2d 30, 286 N.Y.S. 2d 249 (1967). Once again,

the Court of Appeals was strongly influenced by the discriminatory

nature of the ordinance.

In equal protection cases, it is clear from the line of decisions

cited that the lost profits of the plaintiff are taken into account

in determining if there has been a taking such as to render the

ordinance invalid.

The classic statement of how discrimination in zoning will

be held unconstitutional, even in the absence of confiscation in

its usual sense, is Udell v. Haas, 21 N.Y. 2d 463, 288 N.Y.S.

2d 888 (1967). In that case, the plaintiff’s property was rezoned

from business to residential. The court held that because ‘‘the

rezoning was discriminatory and not done ‘in accordance with

the comprehensive plan’ of the Village of Lake Success’’ the

ordinance was invalid. 21 N.Y. 2d 468.

_ The parallels to the case at bar are striking. The Town Board

in this case was found to have been acting in response to the desires

of the public, rather than in fulfillment of a well-considered plan

that would take into account the needs of the whole community.

The Town Board in the case at bar did not consider the

alternative road which the plaintiffs proposed, because they wanted

to win a few votes in the upcoming election, despite the fact that

this road would have been for the benefit of that very group which

was urging the upzoning out of fear of the unknown.

The two reports of the Planning Department, which were

dated the same day, but recommending differing results for

25

contradictory reasons, is evidence that the experts, the Planning

Department in the case at bar, were placed in the role of ‘‘giving

rationalizations for actions previously decided upon or already

carried out.’’ Udell v. Haas, 21 N.Y. 2d 471.

Just as in the case at bar, the Village’s expert in Udell v.

Haas contradicted his own earlier recommendations as well as

the Village’s own position. The court easily saw through the

Village’s ‘‘race to the statute books’’ in the face of a proposal

for development.

The test of discrimination in zoning is ‘‘the propriety of the

treatment of the subject parcel as compared to neighboring

properties.”” 21 N.Y. 2d 476. Because there was nothing to

differentiate between the adjoining parce!s, which would become

existing nonconforming uses under the ordinance, and the

appellant’s parcel, the court found that discrimination existed.

The court also stated bluntly, ‘‘A property owner need not

prove confiscation to establish discrimination.”’ 21 N.Y. 2d 477.

The combination of discrimination and frustration of

investment-backed expectations in the case at bar should result

in the declaration that the law in question is invalid as applied

to the plaintiffs’ property. Because this is a case where the plaintiffs

have been treated in a discriminatory fashion, in violation of equal -

protection, and because the ordinance is not reasonably related

to a legitimate public purpose, there is no requirement that a

complete confiscation be shown.

The United States Supreme Court has held that a regulation

which has the effect of substantially frustrating ‘‘reasonable

investment backed expectation’’ constitutes a per se taking. Kaiser

Aetna v. United States, 444 U.S. 164, 175, 600 S. Ct. 383, 390;

Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470,

493, 499, 107 S. Ct. 1232, 1246, 1249.

26

The United States Supreme Court has also stated, in Nollan

v. California Coastal Commission, 107 S. Ct. 3141, 97 L. Ed.

2d 677 (1987), that the scope of classic ‘‘takings’’ cases includes

nonconfiscation fact patterns. Nollan, 107 S. Ct. 3147. In a

‘*takings’’ case the standard to be applied by the courts, the

Supreme Court has declared, is that the regulation must

substantially advance a legitimate state interest. No/llan, 107 S.

Ct. 3147, footnote 3.

Where, as in the case at bar, there is a singling out of a

landowner to bear the burden of the regulation, despite that

landowner’s failure to contribute more than other landowners to

the problem sought to be solved by the regulation, the U.S.

Supreme Court has declared there is a violation of the Takings

Clause. Nollan, 107 S. Ct. 3147, footnote 4. In such a situation,

the higher standard cited must be applied, namely, the substantial

advancing of a legitimate state interest, not the ‘‘rational basis’’

test which otherwise applies to state action.

Therefore, under the rule recently enunciated by the United

States Supreme Court in No/lan, the Town in the case at bar must

prove that the law in question substantially advances a legitimate

state interest. Only after it has done so does the burden of proof

fall back upon the plaintiffs. For the reasons cited above and

herein, it is respectfully submitted that the Town cannot do so,

and that the law in question should, therefore, be found

unconstitutional.

IV.

DUE PROCESS

A zoning ordinance violates due process when there is no

substantial relationship between the ordinance and a legitimate

zoning purpose. it is also contrary to due process for an ordinance

27

to be arbitrary, in that the purpose of the ordinance and the means

used to effectuate that purpose are not reasonably related.

The equal protection cases focus on the relationship between

the property affected by the ordinance and other surrounding

properties, to determine if there is a discriminatory impact. The

due process cases focus on the relationship between the property

affected and the ordinance itself, to determine if there is a

reasonable nexus which advances a legitimate public interest.

The stated purpose of the law in question is to reduce

residential density because of the narrowness of Indian Hill Road.

But the plaintiffs’ property contains an easement which gives access

to Route 6, and the plaintiffs have offered to build a road across

this easement so as to avoid any need to use Indian Hill Road.

Therefore, there is no nexus between the stated goal of the law

and the upzoning of the plaintiffs’ property to four acres.

The plaintiffs purchased the property when the area was

primarily a quiet residential neighborhood. Over the years the

area has grown into a commercial and retail hub for the entire

region, and an unprecedented complex of apartment buildings

and condominiums has sprung up. Right next to the plaintiffs’

property a large office complex has recently been constructed.

Yet the Town Board upzoned the plaintiffs’ property to estate-

sized lots, eight times the pre-existing zoning, supposedly to avoid

the pitfalls of development.

Clearly the plaintiffs’ small development will do little or

nothing to affect the traffic and population of the area, because

it will amount to but a drop in the sea of progress which the

Town consciously decided to encourage many years ago. The

plaintiffs, as intelligent investors, waited until the property values

had risen to what appeared to be a peak, patiently paying their

taxes every year. When they finally decided to sell, the Town

28

upzoned to a point where the property was unmarketable. The

difficulty of finding buyers of estate sized lots in such a

neighborhood would be so great that the plaintiffs have been

deprived of any reasonable use of their property.

In Stevens v. Town of Huntington, 20 N.Y. 2d 352, 283

N.Y.S. 2d 16 (1967), the prevention of additional traffic was

determined to be the true reason for the measure, but it was held

unconstitutional to place all the burden on an individual owner

under the guise of regulation, even though there was a public

purpose. Because there would be a significant diminution in value

under the new zoning, and the stated goals would not be

accomplished to any significant degree by the ordinance being

sustained, it was found to be tantamount to confiscation to place

such a restriction on the plaintiffs.

When the municipality acts in a discriminatory or arbitrary

manner, there is a taking even where the owner may not lose any

money on his investment, but is only prevented from making the

profit which he would have made had the municipality not imposed

on his constitutional rights. The loss of these profits is, when

the measure is suspect on constitutional grounds, the only

monetary damages necessary to lead a court to a finding of

invalidity. Charles v. Diamond, 41 N.Y. 2d 318, 392 N.Y.S. 2d

594 (1977).

In the case at bar, the Town has stated that the reason for

upzoning is Indian Hill Road. Yet the Town has ignored the offer

by the plaintiffs to build an alternative road which will not require

any use of Indian Hill Road. This new road would go directly

from Route 6 across the plaintiffs’ easement onto the subject

property. The Town is using the existing road as an excuse to

prevent development. Under the rule of Charles v. Diamond,

supra, the Town would bear the burden of providing the needed

improvements even if there were no alternative route, because

29

the problem was not caused by the plaintiffs’ property, but is

general to the community.

The question to be resolved, the court held in French v. City

of New York, 39 N.Y. 2d 592, 385 N.Y.S. 2d 5 (1976), is whether

the enactment under the police power is reasonable. If it is not

reasonable, it violates due process. Reasonability is determined

by balancing the private and social needs. If the ordinance does

not have a substantial relation to the furtherance of the public

health, safety, morals or general welfare, it is unconstitutional.

And if it is arbitrary, in that the ends and the means are not

reasonably related, it is unconstitutional. Finally, the court in

French held, if the ordinance ‘‘renders the property unsuitable

for any reasonable income productive or other private use for

which it is adapted and thus destroys its economic value, or all

but a bare residue of its value’’ it is also unconstitutional. 39

N.Y. 2d 596.

In the case at bar, the plaintiff is being forced to bear the

burden of loss of a valuable property right so that his neighbors

can preserve a greenspace which enhances the value of their

property. The regulation is enacted under the guise of the police

power, but in reality it merely gives away what the plaintiff has

so that others may enjoy a scenic vista. This is not what the zoning

power was intended to be. If the neighbors of the plaintiffs want

to have the Town take the plaintiffs’ property, then they should

be willing to pay for the benefits they receive. If they are not

willing to pay for these benefits, it is a violation of the basic

principles of fairness to impose the whole cost on the plaintiffs.

30

CONCLUSION

For the foregoing reasons, petitioners respectfully request

that this Court grant their petition for a writ of certiorari.

Respectfully submitted,

KENNETH F. McCALLION

Counsel of Record

PETER H. McCALLION

Attorneys for Petitioners

la

APPENDIX A — MOTION FOR LEAVE TO APPEAL OF

THE COURT OF APPEALS, STATE OF NEW YORK

DATED JANUARY 16, 1992

STATE OF NEW YORK

COURT OF APPEALS

At a session of the Court, held at

Court of Appeals Hall in the City

of Albany on the sixteenth day of

January A.D. 1992

Present, HON. SOL WACHTLER, Chief Judge, presiding.

Mo. No. 1342

John R. McGovern, et al.,

Appellants,

Town of Yorktown, et al.,

Respondents.

A motion for leave to appeal to the Court of Appeals in

the above cause having heretofore been made upon the part of

the appellants herein and papers having been submitted thereon

and due deliberation having been thereupon had, it is

ORDERED, that the said motion be and the same hereby

is denied.

s/ Donald M. Sheraw

Donald M. Sheraw

Clerk of the Court

2a

APPENDIX B — NOTICE OF APPEAL OF THE COURT OF

APPEALS, STATE OF NEW YORK

DATED OCTOBER 24, 1991

STATE OF NEW YORK

COURT OF APPEALS

At a session of the Court, held at

Court of Appeals Hall in the City

of Albany on the twenty-fourth

day of October A.D. 1991

Present, HON. SOL WACHTLER, Chief Judge, presiding.

Mo. No. 1168 SSD 81

John R. McGovern, et al.,

Appellants,

Town of Yorktown, et al.,

Respondents.

The appellants having filed notice of appeal in the above

title and due consideration having been thereupon had, it is

ORDERED, that the appeal be and same hereby is dismissed

without costs, by the Court sua sponte, upon the ground that

no substantial constitutional question is directly involved.

s/ Donald M. Sheraw

Donald M. Sheraw

Clerk of the Court

ar

3a

APPENDIX C — DECISION AND ORDER OF THE

SUPREME COURT OF THE STATE OF NEW YORK,

APPELLATE DIVISION, SECOND DEPARTMENT DATED

APRIL 8, 1991

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL

DEPARTMENT

1024u

C/hu

—— | Argued - March 7, 199]

CHARLES B. LAWRENCE, J.P.

GERALDINE T. EIBER

VINCENT R. BALLETTA, JR.

DAVID S. RITTER, JJ.

1862E

John R. McGovern, et. al., appellants, v

Town of Yorktown, et al., respondents.

DECISION & ORDER

Peter H. McCallion, Ossining, N.Y., for appellants.

Michael Grace, Town Attorney, Yorktown Heights, N.Y.,

for respondents.

Appeal by the plaintiffs from an order of the Supreme Court,

Westchester County (Miller, J.), entered October 13, 1989.

4a

Appendix C

ORDERED that the order is affirmed, with costs, for reasons

stated by Justice Miller at the Supreme Court.

LAWRENCE, J.P., EIBER, BALLETTA and RITTER, JJ.,

concur.

ENTER:

Martin H. Brownstein

Clerk

April 8, 1991

McGOVERN v. TOWN OF YORKTOWN

[Stamped]

FILED

AUG 6 1991

ANDREW J. SPANO

COUNTY CLERK

COUNTY OF WESTCHESTER

Sa

APPENDIX D — DECISION AND ORDER OF THE

SUPREME COURT OF THE STATE OF NEW YORK,

COUNTY OF WESTCHESTER DATED OCTOBER 13, 1989

To commence the statutory time

period for appeals as of right

[CPLR 5513 (a)], you are advised

to serve a copy of this order with

notice of entry upon all parties.

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

INDEX NO. 14406-1988

DATE OF MOTION:

MAY 4, 1989

PRESENT: HON. SONDRA MILLER

JOHN R. McGOVERN, NAT SILVER AND CARL SHUBERT,

Plaintiff(s),

-against-

TOWN OF YORKTOWN, TOWN BOARD OF YORKTOWN

AND -NANCY ELLIOTT, NEAL BAILENSON, GARY

AJELLO, BARBARA WILKENS AND ALBERT HAMMOND,

sued individually,

Defendant(s).

6a

Appendix D

DECISION AND ORDER

The following papers numbered | to 37 were read on this

motion by defendant to dismiss the complaint and cross-motion

by plaintiff for summary judgment:

Notice of Motion/ Affidavits 1-25

Cross-Motion 27

Answering Affidavits 26, 36

Replying Affidavits

Filed Papers

Memorandum

Pleadings/Exhibits/Stipulations/

Minutes 28-35, 37

Upon the foregoing papers it is ORDERED that the motions

are disposed of as follows:

Plaintiffs allege eight causes of action against the defendant

Town of Yorktown and the individual members of the Town Board

of the Town of Yorktown. Each cause of action arises out of

rezoning or ‘‘upzoning’’ from 1/2 acre to four-acre zoning of

**The Property’’ in the Indian Hill area held in common by the

three plaintiffs. The rezoning pursuant to Local Law 25/1987 of

the Town of Yorktown went into effect approximately one year

after the plaintiffs purchased the property.

The eight causes of action include allegations of: (I) ‘‘spot

zoning’’ (2) unconstitutional taking without due process of law,

(3) violation of the equal protection clause; (4) a violation of civil

rights under color of law; (5) ‘‘other torts’’; (6) violation of Town

Law; (7) violation of the State Environmental Quality Review

Act; and (8) eminent domain.

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Appendix D

Defendant Town moves to dismiss the complaint pursuant

to CPLR, Section 3211(a)(7) for failure to state a cause of action.

The plaintiffs crossmove for summary judgment pursuant to

CPLR 3212, declaring that the local law 25/1987 of the Town

of Yorktown is unconstitutional as applied to plaintiffs’ property,

to enjoin the Town from enforcing the law against plaintiffs, and

for $1,400,000.00 in compensatory damages and $5,000,000.00

in punitive damages. The defendant in its reply Papers requests

that the motion to dismiss be deemed a motion for summary

judgment because such pleadings have been served.

The complaint was served subsequent to a Notice of Claim

served on the Town Clerk and Town Attorney on December 14,

1987, Hearings were held pursuant to General Municipal Law,

Section 50-H.

Local Law 25/1987 of the Town of Yorktown creates a new

R1-160 zoning district which increases the minimum lot size in

the district including plaintiff’s property from 20,000 to 160,000

square feet. In brief, plaintiff’s property has been re-classified

from one-half acre to four-acre zoning.

As their first cause of action the plaintiffs allege that the

upzoning constitutes ‘‘spot zoning’’. Spot zoning is the singling

Out of a small parcel of land for a use classification totally different

from that of the surrounding area, for the benefit of the owner

of the property and to the detriment of other owners. In this case,

the benefits are reversed but the principe of discrimination remains.

If the enacting authority acts in accordance with a comprehensive

plan, however, the change will not be condemned as spot zoning

(Kravetz v. Plenge, 84 AD2d 422).

[ have examined the Towns Master Zoning Plan and find

8a

Appendix D

that the upzoning of 1987 of which plaintiff complains is consistent

with the Town’s 1983 Comprehensive Master Plan for the Indian

Hill area, which calls for low-density zoning. The purpose of a

comprehensive plan is ‘‘the control of land uses for the benefit

of the whole community based upon consideration of its problems

and applying the enactment or a general policy to obtain a uniform

result not enacted in a haphazard or piecemeal fashion’’ (Kravetz,

supra at p. 429). The Town Development Plan of 1983 meets the

Kravetz standard, as it appears to reflect the interdependence of

physical, social and economic factors in community development.

It encompasses all geographic parts of the community, based upon

a pattern for town development established in 1956, 1966, and

the prior plan of 1980. The Comprehensive Plan of 1983 zones

as low density other areas in the Town as well as the area in issue

for legally sufficient and reasonable grounds.

Plaintiff’s property is in the Indian Hill area at the northern

boundary of the Town: The natural characteristics of the land,

the existing pattern of development, the lack of public services

and the existence of restrictive covenants were the bases for low-

density designation (see 1983Plan, p. 56).

The legislative findings behind the enactment of the most

recent amendment which is the subject of this lawsuit were: (1)

the geographic area, on and near Indian Hill, characterized by

steep slopes and a narrow, substandard road system; (2) the

additional, intolerable traffic burden on this narrow, substandard

road system by the continued development of the area with its

current high-density R1-20 zoning designation

In accordance with the upzoning, the zoning map amended

and reclassified not only plaintiffs’ property but 52 parcels in

total in the Indian Hill area.

9a

Appendix D

Therefore, plaintiffs’ contention that their property was

singled out for a use classification totally different from the

surrounding area is not substantiated by the evidence.

Accordingly, defendant’s motion for summary judgment on

the first cause of action alleging spot rezoning is granted.

The second cause of action alleges an unconstitutional taking

without due process of law.

Two amendments to the United States Constitution safeguard

Property rights from governmental interference. Those

amendments are the Due Process Clauses of the Fifth and

Fourteenth, and, the ‘‘taking’’ or just compensation clause of

the Fifth. The Federal constitutional requirement of due process

of law has been made applicable to the States through the

Fourteenth Amendment. Further, the United States Supreme Court

in Chicago Burlington & Quincy R. R. Co. vy. Chicago, 166 U.S.

226, 17 SCt. 581, (1987), made the ‘‘taking’’ or ‘‘just compensation

clause of the Fifth Amendment applicable to the States.

New York’s Constitution also declares that no person shall

be deprived of his property without due process of law (see, N.

Y. Const. Art. I, Section 6), and that private property may not

be taken without just compensation (N. Y. Cont., Art I, Section

7, subdivision (a)).

Plaintiffs contend the standard in takings clause jurisprudence

has been redefined by the recent United States, Supreme Court

decision Nollan v. California Costal Commission, 107 S Ct. 3141

(1987).

10a

Appendix D

In Nollan, the Supreme Court invalidated a condition imposed

by a California State agency on the grant of a building permit.

The imposition of the condition, in that case granting a public

easement for public access to the beach as a condition for obtaining

a building permit, was viewed as an unconstitutional taking,

because, inter alia, the condition was not designed to further a

legitimate State interest. The Court made clear that in the case

of zoning and land use regulation, conditions imposed on

development must ‘‘substantially advance legitimate state interest’’,

and not deny ‘‘an owner . . . [an] economically viable use of his

[or her] property’’ (Nollan, supra, 107 S Ct. at 3147; see also

Agins v. Tiburon, 447 US 255, 260, 100 SCt. 2138, 2141). In other

words, there must be a relationship between the purpose of the

legislation and the methods employed. Therefore, once a genuinely

valid purpose is established, a law can restrict the use of property,

‘unless the denial would interfere so drastically with the... .

use Of . . . property as to constitute a taking’”’ (Nollan v. California

Costal Comm’n, supra 107 S. Ct. 3141, 3147).

In this case, plaintiffs contend Local Law 25/1987 fails to

meet the minimum constitutional requirements mandated by

Nollan, as there is an insufficient relationship between the

regulation and the property regulated. They further argue that

the Town cannot burden the plaintiffs with the denial of a use

of their property which has been permitted during all the years

of intense development around them, with the accompanying

traffic and demand for municipal services.

However,the legislation at issue is designed to alleviate certain

adverse topographical effects that will occur with development

of the land. The benefits to be derived will not solely accrue to

plaintiffs’ property but will accrue to all property similarly situated

within the re-classified zone.

lla

Appendix D

Plaintiff, however, has failed to establish the absence of a

nexus between the rezoning and the Master Plan. There exists

in fact, the necessary connection between regulation and

government purpose.

Having established a genuinely valid purpose, such legislation

can constitutionally restrict the use of property ‘‘unless the denial

would interfere so drastically with the . . . use of a property as

to constitute a taking’’ Nollan, supra 107 S. Ct. at 3147.

Furthermore, an owner who attacks a zoning ordinance as

violative of the Fifth Amendment on the ground that its economic

impact amounts to confiscation must show more than that the

reclassification has caused a significant diminution in value or

that a substantially higher value could be obtained if an alternate

use is permitted. Curtiss Wright v. E. Hampton, 82 AD 2d 551.

The owner must show he cannot receive a reasonable return on

his property under the existing regulation (Curtiss-Wright v. E.

Hampton, supra 82 AD 2d at 553).

The testimony of the plaintiffs taken pursuant to the General

Municipal Law, Section 50-H reveals that not only will ‘‘The

Property”’ still produce a reasonable return but that is will produce

a substantial return. The testimony revealed that the property was

purchased in 1976 for $20,000.00 and the assumption of a

$44,000.00 mortgage; that a one-acre lot was sold in 1983 for

$13,000.00; that in March 1985 the property had an appraised

value of $212,000.00; and that in March, 1987 the plaintiffs were

tentatively offered $450,000.00 and then $500,000.00 for the parcel.

These offers were rejected pending the outcome of litigation. Since

the upzoning, an appraisal of the property on January 27, 1989

valued the property at $319,000.00.

l2a

Appendix D

Every law is presumed constitutional, and, only when

unconstitutionality is shown to exist beyond a reasonable doubt,

is the presumption overcome (Difance Milk Prods. Co. v. Du

Mond, 309 NY 537, 541 (1956); Montgomery v. Daniels, 38 NY2d

41, 54. This presumption of constitutionality is not limited to

State statutes, since it ‘‘applies. . . . to ordinances of municipalities

as well... .’’ (Lighthouse Shores v. Islip, 41 NY2d 7, 11).

The testimony of the plaintiffs alone is sufficient grounds

to grant defendant’s motion for summary judgment on the second

cause of action. The plaintiffs have failed to show the requisite

lack of connection between the amendment and the Town’s Master

Plan, and they have not demonstrated that the property cannot

be profitably sold, used or leased under the zoning ordinance.

(Dodge Mill Land v. Amherst, 61 AD2d 216, 221).

The third and fourth causes of action allege a violation of

the equal protection clause of the U. S. Constitution. The fourth

cause of action seeks compensation because of the violation of

due process.

Equal protection claims (US Const., 14th Amend., Section

1: NY Const., Art. 1, Section 11) are judged by the ‘‘rational

basis’’ or strict scrutiny’’ test (Alevy v. Downstate Medical Center,

39 NY2d 326 (1976)). Where, as here, there is no suspect

classification such as race, lineage, nationality or fundamental

right at issue the rational basis test is applied. A/evy, supra 39

NY 2d at 332; Maresca v. Cuomo, 64 NY2d 242, 250-1, app.

dism. 474 US 802 (1984). Under that test, the statute or regulation

is presumed valid and must be upheld if the challenged

classification is rationally related to achievement of a legitimate

state purpose (Trump v. Chu, 65 NY2d 20 (1985), app. dism.

474 U.S. 915 (1985)).

l3a

Appendix D

The rule was recently summarized in the Town of Brookhaven

v. State of New York, 142 AD2d 338, 340 (3rd Dept. 1988)):

‘“‘Since neither a suspect classification nor a

fundamental right is called into issue by plaintiffs’

equal protection claim, the subject provisions of

the chapter laws will pass constitutional muster if

they can be said to rationally further a legitimate

State purpose Significantly, the rationale justifying

that purpose may be based upon ‘any reasonable

known or conceivable state of facts’ Thus, if

defendants can demonstrate a perceived legitimate

State objective that will be promoted by the

legislative provisions under attack, they are entitled

to summary judgment.”’

The facts and legitimate governmental purposes underlying

the rezoning do not substantiate plaintiff’s claim of a deprivation

of equal protection. Plaintiffs’ parcel is one of several parcels

subject to the rezoning, and as such, is treated the same as everyone

else similarly situated.

The m«tion for summary judgment on the third and fourth

Causes of action is granted.

The fifth cause of action sounds in ‘‘other torts’. The ‘‘other

torts’’ include malicious interference with plaintiffs’ contractual

relations; malicious interference with prospective business relations:

conspiracy to and perpetration of a fraud upon plaintiffs and

upon the voters of the Town of Yorktown by falsely stating the

real reasons for the upzoning and deliberately disseminating false

and misleading information.

l4a

Appendix D

No set of facts is pleaded that give rise to these causes of

action. Rather, the cause of action is vague and general and fails

to comply with the ‘‘specificity’’ requirements of CPLR, Section

3016 for fraud actions. Further, plaintiffs have failed to plead

the existence of a business or contractual relationship with

defendant, much less interference with the relationship. Therefore,

defendant’s motion for summary judgment on the fifth cause of

action is granted.

The sixth cause of action seeks to invalidate the upzoning

by alleging that the Town failed to give proper notice of the public

hearings prior to the enactment of the local laws.

The affidavit of publication in the local newspaper (Exhibit

21 in the motion to dismiss) reflects that notice was given in

compliance with the Town Law, Section 130. Therefore, the

motion for summary judgment on the sixth cause of action is

granted.

The seventh cause of action alleges a SEQRA violation. Any

cause of action bought for the failure to follow SEQRA is not

properly brought as a declaratory judgment action. Rather, it must

be brought pursuant to CPLR Article 78. Further, any such cause

of action must be brought within four months of the final

determination made under SEQRA. The time to bring this

proceeding has long expired; therefore, this cause of action must

be dismissed.

Cause of action number eight seeks damages under the

Eminent Domain Procedure Law. For the same reasons as set

forth in the second cause of action, defendant’s motion for

summary judgment is granted.

lSa

Appendix D

Inasmuch as the attorney who verified this complaint is not

a party to the proceeding, no ethics violation has been shown

and there is no appearance of impropriety.

Plaintiff’s remaining contentions are without merit.

In view of the above, plaintiff’s motion for summary

judgment is denied, summary judgment is granted to defendants

and this Court declares that local law 27/1987 is constitutional.

Dated: WHITE PLAINS, NEW YORK

October 13, 1988

s/ Sondra Miller

SONDRA MILLER

Justice of the Supreme Court

WHITE AND McCALLION, ESQS.

PETER McCALLION, ESQ.

Attorneys for the Plaintiffs

500 Executive Boulevard

Ossining, New York 10562

MICHAEL J. GRACE, ESQ.

TOWN ATTORNEY FOR THE

TOWN OF YORKTOWN

Defendants

363 Underhill Avenue

Yorktown Heights, New York 10598

[Stamped]

FILED AND ENTERED

ON OCT 13 1989

WESTCHESTER

COUNTY CLERK

l6a

APPENDIX E — CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment, United States Constitution, which

provides: No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment

of a grand jury, except in cases arising in the land or naval forces,

or in the militia, when in actual service in time of war or public

danger; nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be deprived

of life, liberty, property, without due process of law; nor shall

private property be taken for public use without just compensation.

2. The Fourteenth Amendment, United States Constitution,

Section 1, which provides: All persons born or naturalized in the

United States and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

3. The Civil Rights Act of 1871, 42 U.S.C. 1983, which

provides: Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State. . . subjects, or causes

to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

Shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.