# Opposition Brief — Dawson v. Halperin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0579%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1995 - **Citation:** 513 U.S. 1077 ## Text No. 94-624 ¢/. 2 it. FD | ! \ ; . | IN THE a | Critus ie to. Ver’? | Supreme Court of the UniterStates OCTOBER TERM, 1994 > JOAN DAWSON, PAUL DAWSON and TANDRA DAWSON, Petitioners, —against— DONALD M. HALPERIN, Commissioner of the New York State Division of Housing and Community Renewal, and THE CITY OF NEW YORK, Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE NEW YORK STATE COURT OF APPEALS RESPONDENT DONALD M. HALPERIN’S BRIEF IN OPPOSITION G. OLIVER KOPPELL Attorney General of the State of New York Attorney for Respondent Donald M. Halperin JERRY BOONE 120 Broadway Solicitor General New York, New York 10271 Counsel of Record (212) 416-8618 CHARLES F. SANDERS JUNE DUFFY Assistant Attorneys General of Counsel Questions Presented 1. Did the New York State Court of Appeals properly dismiss petitioners’ appeal on the ground that the issues presented have become moot. 2. Do the New York rent control provisions which protect a tenant who has resided in an apartment for twenty years or longer from eviction by a landlord seeking possession of the apartment for his personal use violate any right guaranteed petitioners under the Fifth, Thirteenth or Fourteenth Amend- ments to the Constitution of the United States. TABLE OF CONTENTS PAGE Connotiamn FOOGGRIDE, o:6o5ciscs0ccacicucdsecabakeuaies: i SUED CE RIG 6 ovos ic deccicccsvacsasudiaseieees iV-Vi SIP GOCRN isis ccvacicscvsctvinessxussceeaees ] Senso CHE TRG Cs a cic casts ccaedccdiss sani 2 A. New York’s Protection Of Tenants Who Have Resided In Rent Controlled Apartments For Twenty Years Or Lomger.........ccccccccesss 2 i. PURE Ch ns b kes heswcbasdcanddecsa<: 4 REASONS FOR DENYING THE WRIT............... 6 I. The Issues Which Petitioners Raise In This Proceeding Have Been Rendered Moot By The Permanent Departure Of The Tenants SVGHE Peter SG ove beech ctnenccsccs:. 6 II. The Challenged Provisions Do Not, In Any Event, Effect A Taking Of Petitioners’ PUR kiccqcussadishabenbedinninatbetess~s:s 7 A. There Has Been No Physical Taking ... 9 B. There Has Been No Regulatory Taking. 11 1. Economically Viable Use Of Conclusion 2. Advancement Of Legitimate State Nth lees iaaussanienasaw keds eererereeeeseeeeeeeeeeeeeeeeeseeeeeeeeeeeeseeeeses PAGE iV TABLE OF AUTHORITIES Cases: PAGE Agins v. City of Tiburon, 447 U.S. 255 (1980)......... 12 Barbier v. Connolly, 113 U.S. 27 (1884) .............. 7 Benson Realty Corp. v. Beame, 50 N.Y.2d 994 (1980), appeal dismissed, 449 U.S. 1119 (1981).......... 8 Block v. Mirsck, 56 U.S. 135 (19281)... cccccceses: 13 Bowles v. Willingham, 321 U.S. 503 (1944) ............ 8,13 Braschi v. Stahl Associates Co., 74 N.Y.2d 201 8. , BRERA Ay SN ae Bah nae a a 13 Bucho Holding Co. v. Temporary State Housing Rent Comm'n, 11 N.Y.2d 464 (1962)................... S) Chicago, Burlington & Quincy R.R. Co. v. Chicago, ae ye Seo) pre ree nr err rre 7 Concrete Pipe and Products of California v. Construction Laborers Pension Trust for Southern California, RAS DA Bee COE ecb eas vivevedadarwirdcneser. 12 Dolan v. City of Tigard, 114 S.Ct. 2309 (1994) ....... 10, 12 Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) .... 12 First English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304 (1987) ................ 6 Granat v. Keasler, 663 P.2d 830 (Wash. 1983) ........ 14 Hadacheck v. Sebastian, 239 U.S. 394 (1915)......... 12 1.L.F.Y. Co. v. Temporary State Housing Rent Comm'n, 10 N.Y.2d 263 (1961), appeal dismissed, 369 TR Met rer ren ty or heer Dene coe 9 PAGE Kennedy v. City of Seattle, 617 P.2d 713 (Wash. 1980). 14 Keystone Bituminous Coal Ass'n v. DeBenedictis, Ge Wis i oa hie bdo ob Mdncdreedbindes Fe Bhs Be Lavalle v. Scruggs-Leftwich, 133 A.D.2d 313 ESB gy. RET ey TeV rts Peers Cy eee ee Eee Loab Estates, Inc. v. Druhe, 300 N.Y. 176 (1949)..... Lopez v. Mirabel, 127 A.D.2d 771 (2d Dep’t 1987) ... Loretto v. Teleprompter Manhattan CATV Corp., Re ee BR OP rr ores reer rere 8,9, 13 McMurray v. DHCR, 135 A.D.2d 235 (1st Dep’t), Fe Fe Fir Bee BEE CEO es occ ckvcccranscenes Nollan v. California Coastal Comm'n, 483 U.S. ee Cs 5a ha SoS CENTAGE Sian pep eRe aetaece ds Penn Central Transportation Co. v. City of New York, Se Bes FE i Sic eo i av chart ine nsheb< oi Pennell v. City of San Jose, 485 U.S. 1 (1988) ........ People ex rel. Durham Realty Corp. v. La Fetra, ey A ER ae oe ee Polednak v. Rent Control Board of Cambridge, 494 N.E.2d 1025 (Mass. 1986) ................... Rent Stabilization Ass'n v. Higgins, 83 N.Y.2d 156 (1993), cert. denied, 114 S.Ct. 2693 (1994)....... Seawall Assoc. v. City of New York, 74 N.Y.2d 92, cert. denied, 453 U.S. 976 (1989)............. 4-5, 8, 11 Sobei v. Higgins, 188 A.D.2d 286 (1st Dep’t 1992), appeal dismissed, 81 N.Y.2d 953, leave to appeal Gonbed, GS .F.BG GSS CAGGS) cnccccicsccnccccecss vi PAGE Sourian v. Higgins, 170 A.D.2d 258 (1st Dep’t 1991). 5 Spring Realty Co. v. New York City Loft Board, 69 N.Y.2d 657 (1986), appeal dismissed, "i Pg A peer . a Teeval Co. v. Stern, 301 N.Y. 346, cert. denied, PS As ee CRE ish acs tes deueudhuccédéusincces 9 Yee v. City of Escondido, 112 S.Ct. 1522 SUC h ed po dwus CiadedcdenGareeeienhecnnd es 5, 8, 10, 12 Statutory and Regulatory Materials | __RERE SRS ae Cae eee ge Pere Se Se 3, 11 Ns cicvns4vscuenden voeasansnadkishana 2 Pe Is 5 is ccnk ate vevesseceiewenametnn 2 New York City Admin. Code § 26-408 ................ a BS New York City Admin. Code § 26-408(b)(1).......... 2 I Hiei od. oneinsncsteataehe sabes babans kee’ 4 Miscellaneous Bill Jacket, 1984 Laws of New York, C.234........... 3 IN THE Supreme Court of the United States OCTOBER TERM, 1994 No. 94-624 ee JOAN DAWSON, PAUL DAWSON and TANDRA DAWSON, Petitioners, —against— DONALD M. HALPERIN, Commissioner of the New York State Division of Housing and Community Renewal, and THE CITY OF NEW YORK, Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE NEW YORK STATE COURT OF APPEALS a RESPONDENT DONALD M. HALPERIN’S BRIEF IN OPPOSITION Introduction Respondent Donald M. Halperin respectfully submits that the petition for a writ of certiorari should be denied in this challenge to New York State regulations which protect tenants who have resided in a rent-controlled apartment for twenty years or longer from eviction. The issues in this proceeding have, as the New York Court of Appeals held, become moot. Moreover, the decision of the Appellate Division upholding the regulations is not in conflict with decisions of this Court or at odds with holdings in any other jurisdiction. Statement Of The Case A. New York’s Protection Of Tenants Who Have Resided In Rent-Controlled Apartments For Twenty Years Or Longer In order to evict a tenant from a rent-controlled apartment, a landlord, in most instances, must first obtain a certificate of no objection to eviction issued by the New York State Divi- sion of Housing and Community Renewal (“DHCR”). 9 NYCRR § 2204.2. Under Section 26-408(b)(1) of the New York City Rent Control Law and Section 2204.5(a) of the City’s Rent Control Regulations, a certificate of eviction may be issued “where the landlord seeks in good faith to recover possession of a housing accommodation because of immediate and com- pelling necessity for his own person use and occupancy, or for the personal use and occupancy of his immediate family. . .” However, the rent control law and regulations prohibit the landlord from issuing such a certificate where the tenant is either disabled or over sixty-two years old, or has resided in the apartment for at least twenty years. § 26-408(b)(1), City Rent Control Law; 9 NYCRR § 2204.5(a). The purpose of this prohibition has been stated as follows: Allowing landlords to evict senior citizens and disabled persons could result in financial and physical hardship. These individuals tend to be less mobile, of failing health, and have limited or fixed incomes. Areas with rent regulation have opted to have such regulations as a result of a declared housing shortage. These factors make it extremely difficult for these tenants to find safe, decent and affordable housing elsewhere. Similarly, long-term tenants of two decades are often elderly, although not 62 years of age, and have limited incomes. These tenants, by virtue of their longevity, have become an integral part of their community and have not violated their obligations to the landlord. In view of this, these individuals should be afforded protection from eviction since forcing them out of their housing accom- modations after 20 years could have a devastating effect on them and their community. Bill Jacket, 1984 Laws of New York, c. 234 at 8. Despite the fact that a tenant who has resided in the same apartment for twenty years or longer may otherwise qualify for protection under these provisions, the landlord may nev- ertheless seek the tenant’s eviction and recover possession for his own use where (1) the tenant is violating a substantial obligation of the tenancy, committing or permitting a nui- sance, damaging the premises, substantially interfering with the comfort or safety of the landlord or other tenants, refus- ing the landlord access to make repairs, or refusing to execute a renewal lease; (2) a subtenant of the tenant is in occupancy after the expiration of any lease; (3) subject to certain con- ditions, possession is sought for the purpose of demolishing or substantially altering the premises; and (4) the landlord wishes to withdraw the premises from the market on the ground that its continued operation would impose undue hard- ship upon the landlord, and the rent regulatory authority finds that there is no reasonable possibility that the landlord can make a net annual return of 8 1/2% of the assessed value of the subject property and the landlord and the landlord’s immediate predecessor have not intentionally or wilfully man- aged the property to impair the ability to earn such a return. N.Y.C. Admin. Code § 26-408; 9 NYCRR § 2204. B. Prior Proceedings In August, 1990, petitioners commenced this declaratory judgment action by filing a verified complaint in the Supreme Court of the State of New York challenging the constitu- tionality of the bar to the eviction of twenty-year tenants. Petitioners had purchased a five-story brownstone in New York City in November, 1983. They knew, at the time, that the building contained at least two rent-controlled tenants who had lived in the building since 1970. (A. 3a).' In 1990, peti- tioners wished to evict these tenants in order to obtain the units for their own use and occupancy but believed they were prevented from doing so by reason of the protections afforded twenty-year residents by the challenged provisions. In their lawsuit, petitioners alleged that the enforcement of the pro- visions subjected them to a compelled tenancy, constituting a physical and regulatory taking of property and a violation of due process and the prohibition against involuntary servitude. (A. 18a-19a). Following cross-motions for summary judgment, State Supreme Court dismissed the complaint in its entirety for fail- ure to state a cause of action and upheld the constitutionality of the challenged provisions. (A. 16a-2Sa). In April, 1994 the Appellate Division, First Department, unanimously affirmed the lower court’s ruling. 197 A.D.2d 127 (1st Dep’t 1994). (A. 2a-15a).* In its decision, the Appel- late Division rejected petitioners’ claim that the New York Court of Appeals’ ruling in Seawall Assoc. v. City of New References preceded by “A” are to pages of the appendix to the petition. . After the entry of judgment, petitioners sought a direct appeal as of right to the New York State Court of Appeals pursuant to CPLR § 5601(b)(2). By order entered October 29, 1992, the Court of Appeals transferred the appeal to the Appellate Division, First Department “upon the grounds that a direct appeal does not lie when questions other than the validity of a statutory provision are involved.” (A. 26a). York, 74 N.Y.2d 92, cert. denied, 453 U.S. 976 (1989), and this Court’s decision in Yee v. City of Escondido, 112 S.Ct. 1522 (1992), required an invalidation of the challenged reg- ulations. Rather, the court found that the tenant protections involved here are predicated on a pre-existing relationship between the owners and the tenants. Thus, the court con- cluded that no physical taking was effected since the restric- tion of the challenged regulations is imposed on existing tenancies where the landlords had already put their properties to use for residential housing. The court further concluded that the leases involved were not perpetual since there were numerous circumstances which might develop terminating the tenancy. As to petitioners’ claim of a regulatory taking, the court rejected the argument that the challenged regulations frus- trated their reasonable investment-backed expectations. As the court pointed out, any reasonable expectations petitioners had of evicting the two tenants in question must have been a qualified one since they knowingly purchased a premises that was highly regulated. Further, the protection of long-term ten- ants was held to serve a legitimate government purpose.’ Additionally, the Appellate Division held that the regula- tions protecting twenty-year tenants from eviction do not compel petitioners to remain landlords against their will. In fact, the court found petitioners’ claim of involuntary servi- tude, as well as their due process claim, “frivolous.” Petitioners’ appeal to the Court of Appeals was thereafter dismissed as moot on July 7, 1994, after petitioners informed . In rejecting the petitioners’ takings arguments, the court pointed out that an identical challenge to these same regulations had recently been rejected in a previous case. Sobel v. Higgins, 188 A.D.2d 286 (Ist Dep’t 1992), appeal dismissed, 81 N.Y.2d 953, leave to appeal denied, 82 N.Y.2d 655 (1993). See also Sourian v. Higgins, 170 A.D.2d 258 (lst Dep’t 1991); McMurray v. DHCR, 135 A.D.2d 235 (1st Dep’t), aff’d, 72 N.Y.2d 1022 (1988); Lopez v. Mirabel, 127 A.D.2d 771 (2d Dep’t 1987); Lavalle v. Scruggs-Leftwich, 133 A.D.2d 313 (1st Dep’t 1987). the court that the two twenty-year tenants residing in the peti- tioners’ building had vacated their respective apartments. (A. la). REASONS FOR DENYING THE WRIT I. The Issues Which Petitioners Raise In This Proceeding Have Been Rendered Moot By The Permanent Departure Of The Tenants From Their Apartments The New York State Court of Appeals dismissed petition- ers’ appeal on the ground of mootness after being informed by petitioners’ counsel that the two tenants in their building who had resided there for more than twenty years had permanently left the premises. Petitioners now argue that the proceeding is not moot, even though the tenants have vacated the premises, because they suffered damages during the period when they could have evicted the tenants but were barred by New York regulations from doing so. They maintain that the dismissal of their appeal deprived them of compensation for a temporary taking under First English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304 (1987), which held that where the government’s activities have already worked a taking of all use of property, no subsequeni action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. Id. at 321. Petitioners are mistaken. in First English, the plaintiffs brought an inverse con- demnation suit seeking damages for what they claimed was an uncompensated taking effected by restrictions which the County of Los Angeles had placed on the use of their prop- erty. They did not seek an injunction against the enforcement of the Los Angeles ordinance in question. This Court merely held that, should the plaintiffs prevail in establishing that the ordinance violated their constitutional rights, they would be entitled to damages which they incurred during the temporary period when they were legally prevented from using their property as they wished. Here, on the other hand, petitioners brought this declaratory judgment action solely to prohibit the State from imple- menting its regulations. They never suggested that they were seeking damages. Rather, they sought only to be able to evict their two tenants and use their property for their own personal enjoyment. The fact that the tenants no longer reside in their building has rendered the case moot. Petitioners are now entitled to fully enjoy the use of their entire building. Their attempt to preserve this case by belatedly raising the possibility that they are entitled to damages for the period when the tenants remained in occupancy should be rejected. II. The Challenged Provisions Do Not, In Any Event, Effect A Taking Of Petitioners’ Property Property interests are protected against governmental inter- ference by two provisions of the United States Constitution: 1) the due process clause of the Fourteenth Amendment and 2) the taking without just compensation clause of the Fifth Amendment. Property rights under these constitutional! provisions, how- ever, are not absolute. Rather, such rights have long been sub- ject to uncompensated restrictions through a state’s exercise of its police power in prescribing regulations “to promote the health, peace, morals, education, and good order of the peo- ple.” Barbier v. Connolly, 113 U.S. 27, 31-32 (1884). As this Court explained in Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 (1987), “under our system of government, one of the state’s primary ways of preserving the : The just compensation clause is applicable to the states through the Fourteenth Amendment. See Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 236 (1897). public weal is restricting the uses individuals can make of their property . . . . These restrictions are ‘properly treated as part of the burden of common citizenship’.” (citation omitted). With respect to landlords and tenants, this Court has noted that the “ ‘states have broad power to regulate housing con- ditions in general and the landlord-tenant relationship in par- ticular without paying compensation for all economic injuries that such regulation entails.’ ” Pennell v. City of San Jose, 485 U.S. 1, 12 n.6 (1988) (quoting Loretto v. Teleprompter Man- hattan CATV Corp., 458 U.S. 419, 440 (1982)). Similarly, in Seawall Assoc. v. City of New York, 74 N.Y.2d at 112 n.11, the New York Court of Appeals pointed out that “government has considerable latitude in regulating landlord tenant relation- ships to preclude eviction in hardship, emergency and rent- control cases.” Through the years, federal, state and local governments have, in response to significant housing shortages, enacted legislation declaring the existence of a serious public emer- gency and restricting the ability of landlords to raise rents and evict tenants. This Court and the New York Court of Appeals have consistently upheld these restrictions and rejected claims that such measures constitute an improper taking without just compensation.° See, e.g., Yee v. City of Escondido, 112 S.Ct. at 1522 (rent con- trol ordinance did not amount to a physical taking); Pennell v. City of San Jose, 485 U.S. at 1 (rent control ordinance not facially unconstitutional); Bowles v. Willingham, 321 U.S. 503 (1944) (upholding federal law which fixed maximum rents that could be charged in defense-rental areas); Rent Stabilization Ass'n v. Higgins, 83 N.Y.2d 156 (1993), cert. denied, 114 S.Ct. 2693 (1994) (right of family members to succeed to rent stabilized tenancy did not effect a taking of landlords’ property); Spring Realty Co. v. New York City Loft Board, 69 N.Y.2d 657 (1986), appeal dismissed, 482 U.S. 911 (1987) (statute providing loft residents with status as rent- stabilized tenants did not constitute a “taking”); Benson Realty Corp. v. Beame, 50 N.Y.2d 994, 996 (1980), appeal dismissed, 449 U.S. 1119 (1981) (rejecting claim that the continuation of the New York City Rent yr Here, too, there has been no unconstitutional taking of a landlord’s property. The challenged rent control provisions protect vulnerable persons from eviction where a landlord seeks their apartments for his own use and occupancy. Pro- tecting such persons from eviction does not violate the peti- tioners’ constitutional rights. A. There Has Been No Physical Taking In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-435 (1982), this Court explained that where the character of governmental action is a permanent physical occupation—either by the government itself or by a third party authorized by the government to do so—a compensable taking will be found “to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” Elaborating on this rule, the Court, in Nollan v. California Coastal Comm’n, 483 U.S. 825, 832 (1987), found that a physical occupation—per se compensable—has occurred where the government gives a stranger or a third party “a per- Control Law effects an unconstitutional taking); Bucho Holding Co. v. Temporary State Housing Rent Comm'n, 11 N.Y.2d 464 (1962) (finding that the provision of the Emergency Housing Rent Control Law which fixed the return to which a landlord is entitled was neither confiscatory nor unconstitutional on due process grounds); /.L.F.Y. Co. v. Temporary State Housing Rent Comm'n, 10 N.Y.2d 263, 268 (1961), appeal dis- missed, 369 U.S. 795 (1962) (upholding rent control law and finding that “prohibitions against rent increases may in an emergency be constitu- tional although they reduce the value of the property regulated and deprive its owner of what otherwise would be considered a fair return”); Teeval Co. v. Stern, 301 N.Y. 346, 362 cert. denied, 340 U.S. 876 (1950) (holding that state rent control statute “does not contemplate a taking of the property of any landlord”); Loab Estates, Inc. v. Druhe, 300 N.Y. 176, 180 (1949) (upholding New York City law restricting the right of land- lords to evict tenants and, in doing so, noting that “similar restrictions upon the power of a landlord” had previously been affirmed); People ex rel. Durham Realty Corp. v. La Fetra, 230 N.Y. 429 (1921) (state rent control law upheld in face of claim that it constituted an improper taking without just compensation). 10 manent and continuous right” to pass and repass across pri- vate property. See also Dolan v. City of Tigard, 114 S.Ct. 2309 (1994). Applying this standard, the Appellate Division properly rejected petitioners’ physical taking claim, holding no phys- ical taking of the landlords’ property existed since there was hardly a permanent physical occupation by a stranger or third party given that the tenants were already residing on the premises when it was purchased by the petitioners. Petitioners nevertheless argue that this Court’s decision in Yee v. Escondido, 112 S.Ct. at 1522 requires a contrary result. Petitioners are mistaken. Yee involved a physical taking chal- lenge stemming from the interaction of a recently-enacted local rent control ordinance and the California Mobile Home Residency Law which provided that renters of mobile home “pads” could unilaterally transfer their tenancies to unrelated third parties. Park owners were no longer free to set rents or decide who their tenants would be, and pad renters could sell their mobile homes in place at a premium to any outsider of their choice. The premium was attributable to the corre- sponding right to occupy the pad on which the home stood at a below-market rent. This Court rejected the owners’ claim, holding that where owners voluntarily place their property on the rental market, the government may limit rents and require that landlords accept tenants whom they might wish to exclude. 112 S.Ct. at 1529. It is true, as petitioners point out, that the Court in Yee sug- gested that laws which compel a landowner to refrain in per- petuity from terminating a tenancy might produce a different legal result. 112 S.Ct. at 1529. However, the rent control pro- visions challenged here do not require a landlord to remain in the rental market in perpetuity. Rather, they apply only to spe- cific tenants. As the Appellate Division noted, the occurrence of a number of events would allow the landlord to recover [a twenty-year] tenant’s housing accommodation. For instance, the landlord might recover 1] the unit upon the tenant’s death or upon the tenant’s vio- lation of a substantial obligation of the tenancy, or in instances where the tenant is committing acts constitut- ing a nuisance or permitting the same or permitting the accommodation to be used for immoral or illegal pur- poses; or upon the landlord’s decision to demolish or substantially alter the premises or to withdraw the premises from the rental market where there is no rea- sonable possibility [of] realizing a net annual return of 8'/,% of the property’s assessed value. (See, New York City Administrative Code § 26-408; 9 NYCRR § 2204.) Plaintiffs have failed to make a showing that these con- tingencies canne? occur. (A. 9a-10a). Since the owners here voluntarily purchased property already used for residential housing and were only tem- porarily limited from withdrawing two units from the rental market, their takings claim is not supported by Yee. Their argument is thus without merit. B. There Has Been No Regulatory Taking Governmental action affecting private property may con- stitute a taking even if it does not result in the physical inva- sion of such property. However, since government could hardly function if it had to pay for every action that adversely affects economic value, courts have never found a taking merely because a regulation prevents the most profitable or beneficial use of particular property. Rather, regulatory tak- ings have been found only when challenged actions do not substantially advance legitimate state interests or deny own- ers economically viable use of their property. See, e.g., Nol- lan v. California Coastal Comm’n, 483 U.S. at 834; Keystone Bituminous Coal Ass'n v. DeBenedictus, 480 U.S. at 485; Seawall, 74 N.Y.2d at 107. Petitioners have failed to make such a showing. 12 1. Economically Viable Use Of Property To deprive an owner of the economically viable use of his land, a regulation must make it “impossible” or “commer- cially impracticable” for the owner to profitably engage in his business, or unduly interfere with the owner’s reasonable “investment-backed expectations.” Keystone, 480 U.S. at 485, 495-96; Agins v. City of Tiburon, 447 U.S. 255, 262 (1980); Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124, 127, 136 (1978). New York’s rent control law was first enacted forty-two years ago. Any subsequent purchaser of rent-controlled hous- ing was on notice that he was investing in a heavily regulated market with significant constraints on profit, eviction and dis- posal of property. Petitioners, therefore, cannot reasonably complain that the provisions unfairly interfered with their use of their property. In any event, as this Court noted in a recent takings deci- sion, Concrete Pipe and Products of California v. Construc- tion Laborers Pension Trust for Southern California, 113 S.Ct. 2264, 2291 (1993): . . our cases have long established that mere diminu- tion in the value of property, however serious, is insuf- ficient to demonstrate a taking. See, e.g., Euclid v. Ambler Realty Co., 272 U.S. 365, 384, 47 S. Ct. 114, 117, 71 L.Ed. 303 (1926) (approximately 75% diminu- tion in value); Hadacheck v. Sebastian, 239 U.S. 394, 405, 36 S.Ct. 143, 60 L.Ed. 348 (1915) (92.5% diminution). See also Yee v. City of Escondido, 112 S.Ct. at 1529; Dolan v. City of Tigard, 114 S.Ct. 2309. Since petitioners have not demonstrated that they are suffering complete economic hard- ship,® they have failed to satisfy this prong of a regulatory tak- ings claim. 6 Indeed, petitioners do not disagree and admit that they cannot demonstrate economic hardship. Pet. at 13 n.7.