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Fred F. French Investing Co. v. New York, City of

Citation: 6 ELR 20810
350 N.E.2d 381/39 N.Y.2d 587/385 N.Y.S.2d 5, (N.Y., 05/04/1976)

The New York Court of Appeals affirms a lower court's decision declaring a New York City Zoning Resolution that rezoned two private parks in the Tudor City complex as public parks to be an unconstitutional taking of private property without due process. Tudor City is a four-acre parcel in mid-Manhattan consisting of residential buildings and two 15,000 square-foot parks. The city's rezoning resolution would have allowed only passive recreational uses in the parks and severs above-surface development rights that can be transferred to other property. The court notes that the "taking without compensation" metaphor has been used in many cases where a police power exercise was actually invalidated under the due process rubric. Absent governmental displacement of private ownership, no compensable taking occurs. Plaintiff's remedy in most instances is instead declaratory relief, which depends on whether the rezoning was a valid exercise of the police power. To be upheld police power regulation must be reasonable; reasonableness depends on the facts of each case. Police power encroachments on private property must bear a substantial relation to a legitimate governmental purpose to regulate health, safety, morals, or general welfare to survive judicial scrutiny. An exercise of the police power which requires private owners to assume a disproportionate economic burden of the benefit to the public from the regulation constitutes a denial of due process. Here, the rezoning ordinance leaves the owner with bare title and destroys the parcel's economic value. The development rights, when severed, lose their economic value if they do not immediately attach to other property or are compensated under eminent domain proceedings or by a development bank. The ordinance is thus illegal and must be declared invalid.

Counsel for Plaintiff-Respondent Fred F. French Investing Co.
Bernard S. Meyer
Fink, Weinberger, Levin & Charney
551 Fifth Ave.
New York NY 10017
(212) 682-0546

Counsel for Defendant-Appellant City of New York
W. Barnard Richman, Corporation Counsel
Alfred Weinstein
L. Kevin Sheridan
Municipal Building
New York NY 10013
(212) 566-3929

Counsel for Defendant-Respondent Ramsgate Properties
Lowell D. Willinger
Edward Brodsky
Goldstein, Shames & Hyde
655 Madison Ave.
New York NY 10021
(212) 838-3700

Counsel for Amicus Curiae Tudor City Association
David W. Peck
Howard T. Milman
Sullivan & Cromwell
48 Wall St.
New York NY 10005
(212) 952-8100

Breitel, C.J.; Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke, JJ., concur.