Historic Preservation and the Takings Issue: Supreme Court Upholds New York City's Landmarks Law

In a decision anxiously awaited by advocates of historic preservation and land use planners, the Supreme Court on June 26 upheld the consituationality of both New York City's Landmarks Preservation Law and the city's refusal under it to permit construction of a 50-story office building above Grand Central Terminal. The Court's ruling in Penn Central Transportation Co. v. New York City¹ establishes that the imposition of developmental restrictions on individual parels of private property for the purpose of preserving buildings of historic interest lies within a municipality's police power and that "takings" challenges to such actions are to be evaluated under the legal tests traditionally applied to disputed zoning measures. By holding that historic preservation measures are analogous to traditional zoning actions rather than to governmental appropriations of private property for public use, the Court laid to rest a ghost that has deterred many municipalities which have historic preservation statutes from designating buildings as historic structures or landmarks under them.

In addition to its validation of a city's power to impose developmental restrictions on property in order to preserve historic buildings without necessarily having to compensate the owner for whatever diminution in value this action causes, the Court's opinion also indicates a hospitable attitude toward the use of transferable development rights (TDRs) as a mechanism for mitigating the economic impact of such measures on property owners.

While the opinion gives both landmark preservation and transferable development rights a boost, it breaks no new doctrinal ground on the takings issue. The Court simply reiterated the traditional view that regulation will constitute a taking only if it deprives the owner of all reasonably beneficial use of the property. In dicta, however, the Court explicitly refused to embrace the proposition, recently advanced by several ommentators, that regulation of private property for the general welfare cannot constitute a taking so long as no outright governmental confiscation or physical invasion of the property has occurred.

Background

The New York City Landmarks Law

Recent years have seen a growing public awareness of the destruction of large numbers of historic structures throughout the nation, often without consideration of their historic, architectural, or cultural significance.² Recognizing that such buildings enhance the quality of the environment, all 50 states and more than 500 municipalities have adopted laws designed to encourage the preservation of structures or areas with special historic or aesthetic importance.³

In 1965, responding to mounting public pressure, the New York City Council enacted the Landmarks Preservation Law.⁴ Like most state and local historic preservation measures, this law avoided direct public acquisition of properties. Instead, the Landmarks Law, which is one of the nation's most sophisticated and restrictive preservation statutes, envisioned the application of a mixture of land use controls and economic incentives to encourage or require private owners to preserve historically important structures.⁵ The law created a Landmarks Preservation Commission and empowered this body to designate properties of special historic or aesthetic importance as "landmarks" subject to approval by the city Board of Estimate and possible judicial review. Once a building has been designated a landmark, the law requires that the owner keep its exterior features in good repair and that any proposal to make exterior alterations be certified in advance by the Commission as either having "no effect" on the structure's protected features or as being in harmony with those features and thus "appropriate."⁶ One mechanism available to the city under its zoning laws is to make the unused development rights in a landmark transferable to other parcels in the immediate vicinity.⁷ In addition, if the owner can make a showing that he is not able to receive a "reasonable return" from the property because of the designation, the Commission must work with him to devise a plan to enable him to earn such a return. Tax reductions or exemptions may be used by the city in this regard, and sale of the property or allowing some modified form of the inappropriate alteration to proceed is available as a last resort.

[8 ELR 10150]

Grand Central Designation and State Court Decisions

Grand Central Terminal, a "magnificent example of the French Beaux Arts style,"⁸ was designated a landmark under the law in August 1967. One month later, its owner, the Penn Central Transportation Company, announced plans to build a 50-story office building above the Terminal, and in January 1968 leased the air space over the Terminal to a private developer for 50 years at $1 million a year during construction of the building and about $3 million a year thereafter. To be compared against these figures is the approximately $1 million in rental income the company was currently receiving from concessioners in the Terminal who would be displaced by the new building. The proposal was designed to increase Penn Central's income from the property by taking advantage of the fact that under applicable zoning law the Grand Central parcel could be developed to a substantially higher floor area capacity. Because the proposed building met all relevant zoning requirements, no variance or approval was needed from the city Planning Commission. The Landmarks Preservation Commission, however, denied certificates of "no exterior effect" and "appropriateness" for two architectural plans after finding that they were both incompatible with Grand Central's protected features.

Penn Central elected not to exercise its statutory right to obtain judicial review of the denial of either certificate, just as it had not sought review of the original designation of the Terminal as a landmark. Instead, the company filed suit in state court alleging that application of the Landmarks Law to the Terminal constituted an illegal taking of private property without just compensation. The trial court ruled for plaintiff, but the Appellate Division reversed,⁹ holding that the restrictions imposed on development of the Terminal site furthered the legitimate public purpose of protecting landmarks. While Penn Central had been deprived of the property's most profitable use, the court concluded, it had failed to show a deprivation of all reasonable beneficial use, and thus no taking had occurred. The court also noted that Penn Central had not shown an inability to profitably transfer the development rights over the Terminal to other nearby parcels.

The New York Court of Appeals affirmed on a different rationale.¹⁰ Chief Judge Breitel, writing for the court, rejected what he saw as a substantive due process attack on the city's actions, ruling that Penn Central had not shown that the restriction on development had deprived it of a reasonable return on the "privately" created component of the Terminal's value.¹¹ Judge Breitel also suggested that the development rights above the Terminal, which had been made transferable to several suitable parcels in the vicinity, were valuable and perhaps provided fair compensation for the loss of the right to build above the Terminal itself. Penn Central's appeal to the United States Supreme Court was accepted.

The Supreme Court Decision

Restatement of Takings Doctrine

The Supreme Court, in a 6-3 decision, affirmed the state court of appeals, ruling that no taking had occurred and that it was thus unnecessary to address the question of compensation.¹² Justice Brennan, writing for the majority, began his analysis with an admission that the question of what constitutes a "taking" for the purposes of the Fifth and Fourteenth Amendments has caused the courts considerable difficulty and that no "set formula" has been developed for determining when economic injuries to property owners caused by public action must be compensated. Instead, he asserted, judicial analysis of whether a taking has occurred is essentially an ad hoc, factual inquiry in each case.

Justice Brennan identified two factors that are of particular significance in this analysis: (1) the economic impact of the regulation on the property owner, including the extent to which the regulation interferes with distinct investment-backed expectations, and (2) the charter of the challenged governmental action. The opinion observed that a taking can more readily be found when government interference with private property can be characterized as a physical invasion or appropriation¹³ rather than as regulation to promote the common good. The Court recounted numerous cases, typified by Goldblatt v. Hempstead,¹⁴ in which land use regulations that promote health, safety, or the general welfare, such as zoning laws, have been upheld even though they prohibit proposed or existing uses of individual parcels of private property, as long as the regulated parcel retained some reasonable use.

Justice Brennan also acknowledged the proposition, advanced most prominently in Pennsylvania Coal Co. v. Mahon,¹⁵ that a use restriction, although furthering [8 ELR 10151] important public policies, may so frustrate distinct investment-backed expectations or have such an unduly harsh impact on the owner's use of the property as to amount to a taking.¹⁶ The Court emphasized, however, that in Pennsylvania Coal the state statute prohibiting mining in residential areas did not simply diminish the value of the regulated property, which consisted of subsurface mining rights under a house, but had the same effect as complete destruction of those rights. Later in its opinion, the Court was even more explicit on this point, stating that the case law has uniformly rejected the notion that partial diminution in value, standing alone, can establish a taking, at least as to land use regulations reasonably related to promotion of health and safety or the general welfare.

Penn Central's Arguments

Penn Central contended that any substantial restriction on the use of private property imposed pursuant to the Landmarks Law represents a taking and is unconstitutional unless accompanied by compensation. The company did not contest that historic preservation was a permissible governmental goal or that the restrictions imposed on the Terminal were appropriate means of accomplishing that goal.¹⁷ Penn Central also accepted the state court's factual conclusion that the Terminal is presently capable of earning a reasonable return and that the transferable development rights held by the company were valuable. In the company's view, none of these factors diminished its claim that the city had taken its property.

Penn Central's first argument, based on United States v. Causby,¹⁸ was that the air space above the Terminal is a distinct and valuable property right and that it had been deprived of the use of this property under the Landmarks Law. The flaw in this argument, according to Justice Brennan, is its initial premise. "Tackings" jurisprudence, he emphasized, does not divide an individual parcel into discrete segments in order to determine whether the owner's rights in one of those segments have been completely abrogated by governmental regulation. On the contrary, the appropriate focus is on the nature and extent of the governmental interference with the owner's rights in the parcel as a whole.¹⁹ The Court likewise rejected the related argument, also based on Causby, that in imposing developmental restrictions on the Terminal's superadjacent air space the city appropriated part of the property for a strictly governmental purpose. To Justice Brennan, the Terminal's situation was not even remotely like the plight of the property in Causby. The city had not physically invaded the air space above the Terminal nor used it for public purposes, he explained, but had instead simply restricted the occupancy of that space by private parties. In addition, the city's actions under the Landmarks Law in no way impaired Penn Central's present use of the Terminal which concededly brought it a reasonable return.

The company next claimed that the law had taken its property by significantly reducing the value of the Terminal site. Penn Central conceded that partial diminution in property value, standing alone, does not establish a taking where an otherwise valid zoning measure is the governmental action at issue. The company argued, however, that the Landmarks Law is fundamentally different from common zoning or historic district legislation because the controls imposed under it apply only to selected properties rather than to all properties within a given geographic area. In plaintiff's estimation, the actions taken under the Landmarks Law were in effect discriminatory "reverse spot" zoning, and the law itself unfairly and inequitably imposed the entire financial burden of preserving historic landmarks within the city on a small number of property owners while all the city's residents enjoyed the benefits of the presence of these landmarks within the urban environment.

Stating that acceptance of this argument would invalidate much of the landmark legislation that has been adopted throughout the nation, the Court decided that it was without merit and that, for the purposes of judicial review, landmarks laws such as New York City's are to be equated with traditional zoning measures. Justice Brennan characterized the Landmarks Law as embodying a comprehensive plan to preserve structures of historic or aesthetic interest throughout the city, under which more than 400 landmarks and 31 historic districts had already been designated. Moreover, he added, legislation designed to promote the general welfare usually burdens some landowners more than others, and the zoning case law has firmly established that such measures need not be invalidated on this account.

The Court also disputed the accuracy of Penn Central's assertion that it was uniquely burdened and wholly unbenefited by the Landmarks Law, noting that landmark status has been imposed on a large number of other structures throughout the city and that the Terminal owner shares in the improved quality of urban life which the law fosters. The Court completed its refutation of this argument by rejecting the notion that landmark designation is inevitably subjective and therefore arbitrary. A landmark owner's right to judicial review of any decision by the Landmarks Preservation Commission, Justice Brennan asserted, acts as a safeguard against arbitrary or discriminatory action that should be just as effective here as it has been in the context of classic zoning measures.

Having determined that the Landmarks Law does not authorize de facto taking and thus is not per se invalid because of its failure to provide compensation to injured [8 ELR 10152] landmark owners, the Court reached the further conclusion that the law had not worked a taking as applied in this case. In assessing the severity of the law's impact on the Terminal site, Justice Brennan first noted that the landmark restrictions imposed by the city, although they go beyond those imposed by applicable zoning requirements, in no way interfere with the current uses of the Terminal. More importantly, the record established that Penn Central is still able to obtain a "reasonable return" on its investment.

Justice Brennan also pointed out that because Penn Central had not sought approval for construction of a smaller structure above the Terminal, it could not say it had been denied all use of the superadjacent air space. Moreover, to the extent Penn Central had been denied the right to build above the Terminal, those development rights had not been completely abrogated because the city has made them transferable to several other parcels in the Terminal's vicinity. Admitting that these transferable development rights might not suffice as "just compensation" if a taking had occurred, Justice Brennan emphasized that they nonetheless mitigate the financial burden placed on Penn Central and are thus to be taken into account in determining the impact of the restrictions imposed under the Landmarks Law.

The Dissent

Justice Rehnquist, joined by Chief Justice Burger and Justice Stevens, argued that a taking of Penn Central's property rights had occurred and that the case should therefore be remanded for a determination of whether the development rights made transferable constitute full compensation to the company. In his view, the Landmarks Law places on the landowner the entire cost of maintaining the Terminal for a public purpose without the "reciprocity of advantage" which normally accrues to all property owners under uniformly applicable zoning ordinances. Justice Rehnquist sought to distinguish Goldblatt v. Hempstead²⁰ on the ground that unlike the mid-city open pit mining there outlawed by a zoning ordinance, construction of a skyscraper above the Terminal is permissible under the relevant zoning regulations and not a "noxious" use of the property. The dissent also argued that it is precisely this sort of disproportionate and inequitable imposition on the property's owner of the entire cost of several million dollars a year of preserving the Terminal for the benefit of all the citizens of New York that the Fifth Amendment prohibits. As their final point of disagreement with the majority, the dissenters disputed what they took to be the majority's ruling that an exercise of the police power is noncompensable as long as the landowner may still make some reasonable use of his property. Justice Rehnquist warned that defining "reasonable return" for various types of property and delineating the exact property unit to be examined in particular cases will pose difficult problems.

Analysis

Historic Preservation

Penn Central resolves any lingering doubts about the constitutionality of land use regulations aimed at preserving particular historic buildings and sites. The Court had no trouble concluding that such measures are within the scope of the municipal police power to impose restrictions on land use in order to promote the general welfare, including the aesthetic and cultural aspects of the human environment. The Court's analogy between landmark preservation laws and zoning ordinances appears intended to lend to the former the presumption of legitimacy traditionally accorded zoning measures, and establishes in one stroke a set of familiar standards, such as the requirement for a comprehensive plan, under which their validity in particular cases is to be determined.

As Justice Brennan recognized, direct municipal acquisition of all or portions of historic properties is not a viable means of preserving such landmarks given the tax base reductions, the removal of these parcels from economic productivity, and the added burden on already strained municipal budgets that this approach would entail.²¹ It has been the fear of having to pay the prohibitive price of compensating owners for any reduction in property values occasioned by landmark designation that has served as the principal deterrent to municipal efforts to press ahead with programs to preserve historic buildings. Penn Central will undoubtedly be read to erase these reservations in most instances and will likely generate a widespread drive for full implementation of strong landmark preservation programs.

Takings Law

The Court's treatment of the takings issue offered few surprises. Recounting without fully synthesizing its erlier decisions in this area, the majority opinion looked chiefly to Goldblatt v. Hempstead,²² its most recent decision concerning takings and the local police power, and through Goldblatt to Justice Holmes' opinion in Pennsylvania Coal Co. v. Mahon,²³ for the guiding principle that land use regulation for the promotion of health, safety, or the general welfare may adversely affect or even prohibit particular prospective or current uses without amounting to a taking as long as the owner is left with some reasonably beneficial use for the property. This represents a familiar formulation of general takings law doctrine,²⁴ as does the proposition that an ad hoc examination of the facts is necessary in each case to determine whether a taking has occurred. The Court validated another important point by approaching the taking issue from the perspective of the Landmarks Law's impact on the regulated property as a whole, rather than the effect on any one of the bundle of rights held by the property owner. As Justice Brennan rightly recognized, allowing the takings analysis to focus on only a portion of the total property, such as the air rights, would result in a judicial finding that a taking of that segregated property interest had occurred where reasonably beneficial uses for the parcel as a whole remained.

The Court's opinion offers an interesting if oblique response [8 ELR 10153] to recent attacks on Justice Holmes' majority opinion in Pennsylvania Coal. Several commentators have renewed the contention made by Justice Brandeis in his dissent in Pennsylvania Coal that otherwise valid exercises of the police power can never constitute a taking, even if private property rights are wholly abrogated.²⁵ The Penn Central majority opinion indicates strong disagreement with this revisionist view, however, both by looking to Pennsylvania Coal for guidance and by stating that "we do not embrace the proposition that a taking can never occur unless Government has transferred physical control over a portion of a parcel."²⁶ Justice Brennan pointed to the character of the challenged governmental action as one of the relevant factors in the takings analysis, but he made it quite clear that a measure which regulates rather than appropriates private property must nonetheless be scrutinized for the extent of its economic impact on the owner.

Transferable Development Rights

Underlying the Court's opinion is the recognition that the chief problem facing historic preservation efforts all along has been not so much legal as economic. Not surprisingly, many historic properties are in a state of disrepair or are otherwise unequipped to provide owners with economic rates of return competitive with other investments. The situation of Grand Central Terminal is atypical in this respect. Because of the Terminal's prime location, its attraction for tourists, and its integral role in New York City's transportation system, its owner is virtually assured a reasonable return on the property. The basic requirement that development and use restrictions to preserve historic values leave the owner a reasonably beneficial use, or in the words of the New York Landmarks Law a "reasonable return," may thus prove much more difficult to satisfy in most cases than in Penn Central. Where landmark designation has rendered a parcel of property no longer economically viable, mitigation devices such as tax relief or making the development rights in the landmark parcel transverable may be necessary to avoid a judicial finding of a taking and an award of compensation, or tax default and abandonment, which would throw ownership and the responsibility for maintaining the structure onto the city.

The Terminal's propensity for earning a reasonable return makes it doubtful that the existence of the transferable development rights scheme played a decisive role in the Court's calculus. In fact, it seems the result in

Penn Central would have been the same even without the TDR arrangement. Nevertheless, the device clearly found favor with the Court as a mechanism for mitigating the financial burden of a landmark designation on the property owner. This point is noteworthy because the constitutionality and economic fairness of TDRs has been much disputed.²⁷ Although admitting that the New York TDR scheme is not without its flaws, Justice Brennan apparently had no difficulty with the legality of the TDR mechanism. He noted that in the case of Grand Central Terminal such rights met the requirement of possible attachment to identifiable parcels²⁸ and are to be considered a valuable commodity in assessing the net economic burden placed upon the Terminal's owner. The Penn Central opinion thus indicates that cities may properly use the TDR device as an additional economic cushion to safeguard land use restrictions against judicial invalidation.

Conclusion

Historic preservationists rightly toasted the Penn Central decision as a resounding victory for their cause. The opinion sweeps away any lingering doubts about the ability of states and localities to regulate the use of private property to preserve hisotic resources to the full extent of the police power. The Court also gave its implicit blessing to the use of transferable development rights as a mechanism with which municipalities may assure a landmark owner a reasonable return on the property when its economic viability is endangered by historic designation.

Although the Court made no attempt in Penn Central to rewrite the existing law regarding takings and the police power, it did try to harmonize, to some extent, its previous decisions in this area. This most recent of the Court's infrequent pronouncements on the takings issue in state and local land use regulation does in fact clarify some aspects of this conceptually muddled area of the law, such as the indivisibility of a parcel into component property rights for takings analysis. Of additional interest to courts and commentators may be the Court's rejection of the reformist view that a taking can never occur unless private property is confiscated or physically invaded by the government.

A final point of interest to land use lawyers and urban planners is the Court's favorable reception of both the concept of transferable developmnt rights and the new York TDR scheme as applied to Grand Central Terminal. Although probably dicta, these positive references may serve to boost the use of TDRs in municipal historic preservation measures and perhaps in other, more general land use control programs as well.

1. 46 U.S.L.W. 4856, 8 ELR 20528 (June 26, 1978).

2. See Costonis, The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85 HARV. L. REV. 574, 574 n.1 (1972).

3. See NATIONAL TRUST FOR HISTORIC PRESERVATION, A GUIDE TO STATE HISTORIC PRESERVATION PROGRAMS (1976).

4. N.Y. CITY ADMIN. CODE § 205-1.0 et seq. (1976).

5. See Wilson & Winkler, The Response of State Legislation to Historic Preservation, 36 LAW & CONTEMP. PROB. 329, 330-31, 339-40 (1971).

6. The Model Land Development Code adopted by the American Law Institute in 1975 contains a similar provision authorizing landmark designation and restricting development of a designated parcel unless a "special development permit" is granted. ABA-ALI MODEL LAND DEV. CODE § 2-208 (1975).

7. New York City regulates the density of development through the zoning technique of assigning each district a Floor Area Ratio which expresses the total allowable floor area for a building in that district as a multiple of the surface area of its lot. In addition, each district has an absolute limit on building height. The city's TDR mechanism allows the unused floor area from property such as Grand Central that has not been developed to the full extent permitted by the applicable zoning limitations to be transferred to other nearby parcels, thereby allowing development which exceeds the currently applicable floor area maximum for those sites. N.Y. City Zoning Resolution, art. III, ch. 4, §§ 74-79 to 74-793. See Note, Development Rights Transfer in New York City, 82 YALE L. J. 338, 349-53 (1972).

8. 46 U.S.L.W. at 4859, 8 ELR at 20530.

9. Penn Central Transportation Co. v. City of New York, 50 App. Div. 2d 265, 377 N.Y.S.2d 20, 6 ELR 20251 (1975).

10. Penn Central Transportation Co. v. City of New York, 42 N.Y.2d 324, __ N.E.2d __, 7 ELR 20579 (1977). See Comment, A New, New Takings Analysis Blooms in New York, 7 ELR 10166 (1977).

11. Judge Breitel argued that society created much of the present value of the Terminal property through grants of land and rights-of-way, franchises, and favorable tax treatment, and that this governmentally created ingredient of the property's value must be excluded from the reasonable return analysis. See Costonis, The Disparity Issue: A Context for the Grand Central Terminal Decision, 91 HARV. L. REV. 402, 416-17 (1977); Comment, A New, New Takings Analysis Blooms in New York, 7 ELR 10166 (1977). The Supreme Court noted this novel analysis but declined to rule on its validity. 46 U.S.L.W. at 4861 n.23, 8 ELR at 20532 n.23.

12. Penn Central Transportation Co. v. New York City, 46 U.S.L.W. 4856, 8 ELR 20528 (June 26, 1978).

13. As an example of government acquisition of private property to facilitate uniquely public functions that can properly be characterized as a taking, the Court pointed to two overflight cases, United States v. Causby, 328 U.S. 256 (1946), and Griggs v. Allegheny County, 369 U.S. 84 (1962). In those cases, Judge Brennan emphasized, not only had the current use of private property been severely limited or destroyed, but a portion of the property had also been subjected to actual physical invasion.

14. 369 U.S. 590 (1962) (claimant failed to demonstrate unreasonable loss from a town ordinance which prohibited mining below groundwater level and effectively foreclosed claimant's preexisting use of 38-acre tract; ordinance upheld as a valid exercise of the police power).

15. 260 U.S. 393 (1922).

16. 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.

260 U.S. at 416.

17. Despite the fact that this point was apparently uncontested, Justice Brennan went out of his way to emphasize that under Berman v. Parker, 348 U.S. 26, 33 (1954), and Village of Belle Terre v. Boraas, 416 U.S 1, 9-10, 4 ELR 20302, 20303-04 (1974), land use controls to enhance the quality of life by preserving structures and areas with special aesthetic or cultural significance are well within the municipal police power.

18. 328 U.S. 256 (1946) (frequent low-altitude military over-flights which destroyed use of property as a chicken farm held a taking of an easement for which compensation is required).

19. Interestingly, the Court cited no direct authority for this principle, first fully explicated by Justice Brandeis in his dissent in Pennsylvania Coal, 260 U.S. at 419.

20. 369 U.S. 590 (1962).

21. Wilson & Winkler, supra note 5, at 330-31, 339-40.

22. 369 U.S. 590 (1962).

23. 260 U.S. 393 (1922).

24. See, e.g., Sax, Takings, Private Property and Public Rights, 81 YALE L.J. 149, 152, 156 (1971).

25. The essence of this view is that Holmes misread both the Fifth Amendment and the earlier case law exemplified by Mugler v. Kansas, 123 U.S. 623 (1887) (state not required to compensate brewery owner for loss caused by law prohibiting the manufacture of alcoholic beverages). See, e.g. BOSSELMAN, CALLIES & BANTA, THE TAKING ISSUE: AN ANALYSIS OF THE CONSTITUTIONAL LIMITS OF LAND USE CONTROL 238-55 (1973); THE USE OF LAND: A CITIZENS' POLICY GUIDE TO URBAN GROWTH 175 (W. Reilly ed. 1973).

26. 46 U.S.L.W. at 4861 n.25, 8 ELR at 20533 n.25.

27. Compare Marcus, Mandatory Development Rights Transfer and the Taking Clause: The Case of Manhattan's Tudor City Parks, 24 BUFFALO L. REV. 77 (1974); Costonis, Development Rights Transfer: An Exploratory Essay, 83 YALE L.J. 75 (1973) with Gale, The Transfer of Development Rights: Some Equity Considerations, 14 URBAN L. ANN. 81 (1977); Berger, The Accommodation Power in Land Use Controversies: A Reply to Professor Costonis, 76 COLUM. L. REV. 799 (1976); Note, The Unconstitutionality of Transferable Development Rights, 84 YALE L.J. 1101 (1975).

28. See Fred F. French Investing Co. v. City of New York, 39 N.Y.2d 587, 350 N.E.2d 281, 385 N.Y.S.2d 5, 6 ELR 20810, cert. denied, 429 U.S. 990 (1976); Comment, Losing the Battle . . New York Court of Appeals Overturns Development Rights Transfer Scheme, 6 ELR 10276 (1976).