The Emergence of Hostility Toward Government Regulation of the Economy

Hofstra Law Review

Volume 25 | Issue 1 Article 1

1996 The Growth of Distrust: The meE rgence of Hostility Toward Government Regulation of the Economy William E. Nelson

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Recommended Citation Nelson, William E. (1996) "The Growth of Distrust: The meE rgence of Hostility Toward Government Regulation of the Economy," Hofstra Law Review: Vol. 25: Iss. 1, Article 1. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol25/iss1/1

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HOFSTPA AW REVIEW Volume 25 Fall 1996

THE GROWTH OF DISTRUST: THE EMERGENCE OF HOSTILITY TOWARD GOVERNMENT REGULATION OF THE ECONOMY

William E. Nelson*

CONTENTS

I. INTRODUCTION ...... 2

I1. THE BIRTH OF INTEREST-GROUP POLITICS ...... 5

III. THE GROWTH OF PROCEDURAL PROTECTION ...... 7

IV. THE INVALIDATION OF CONFISCATORY AND SPECIAL-INTEREST REGULATIONS ...... 17 A. Zoning ...... 18 B. Long-Term Protection of Tenants' Rights ...... 32 C. Labor Law ...... 39 D. Utility and Business Regulation ...... 46

* Joel and Anne Ehrenkranz Professor of Law, New York University. A.B., Hamilton College, 1962; LL.B., New York University, 1965; Ph.D., Harvard University, 1971. Students in frst-year Property at New York University and Yale University were the inspiration for many of the ideas in this Article, while colleagues in the Legal History Colloquium at New York University provided invaluable criticism and insight. Joseph Kennedy also provided useful help. Finally, acknowledgment is due to the Filomen D'Agostino Greenberg and Max E. Greenberg Faculty Research Fund at New York University for its research support.

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V. EMINENT DOMAIN AND TAXATION ...... 56 A. Eminent Domain ...... 56 B. Taxation ...... 65

VI. CONCLUSION ...... 79

I. INTRODUCTION We live today at a time of intense debate about the proper limitations on the police power-that is, the power of government to regulate the economy and other private affairs. Our era stands in sharp contrast to the decade of the 1930s, when government regulatory power was being expanded to its fullest scope. Commentators during those years observed that the police power was "'the least limitable of the powers of government"" and "extend[ed] to all the great public needs."2 It authorized the state to "require industry and commerce to be carried on in [a] manner which [would] promote the public health and welfare," even when such a requirement would "increase the cost of doing business."3 The police power also authorized government action "'to promote justice and fair dealing and to prevent wrongs.' 4 Indeed, the power even became "elastic" 5 in nature when it was invoked in support of legislation "passed to meet an existing emergency actually involving the public interest,' 6 which was thought to justify "interference by the 7 state" in private markets and to give the legislature "power . . . to enact measures' ' 8 'to avert a threatened pauperism."' 9

1. People v. Perretta, 171 N.E. 72, 73 (N.Y. 1930) (quoting District of Columbia v. Brooke, 214 U.S. 138, 149 (1909)). 2. Id. 3. People v. Cunard White Star, Ltd., 21 N.E.2d 489, 490 (N.Y. 1939). 4. Port Chester Wine & Liquor Shop v. Miller Bros. Fruiterers, 22 N.E.2d 253, 254 (N.Y. 1939) (quoting Reiner v. North Am. Newspaper Alliance, 181 N.E. 561, 562 (N.Y. 1932)). But cf. Doubleday, Doran & Co. v. R.H. Macy & Co., 284 N.Y.S. 533, 536, 539 (Sup. Ct. 1935), aff'd, 199 N.E. 409 (N.Y. 1936) (holding that legislation attempting to fix selling price of ordinary commodities was beyond constitutional legislative power). 5. People v. Sterling, 220 N.Y.S. 315,317 (Sup. Ct. 1927), aff'd, 226 N.Y.S. 881 (App. Div. 1928). 6. Morrison v. Gentler, 273 N.Y.S. 952, 953 (Brooklyn Mun. Ct. 1934). 7. Coty, Inc. v. Heam Dep't Stores, 284 N.Y.S. 909, 916 (Sup. Ct. 1935). 8. People v. Moynihan, 200 N.Y.S. 434,437 (Chautauqua County Ct. 1923) (sustaining the Fuel Administration Law, ch. 673, 1923 N.Y. Laws 1743 (1922), an emergency measure regulating the fuel supply during a temporary shortage).

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Since the 1940s, in contrast, pressures have grown to cut back on the scope of police power. This Article seeks to explain historically how those pressures developed. The Article, it must be emphasized, takes no position in normative debates about the police power. It does not claim that legal thinkers of the New Deal era were correct in expanding the power to its outer reaches,'0 nor does it argue that today's neo-conser- vatives are right in striving to impose limits." Instead, the goal of the Article is to understand why New Dealers arguing for the expansion of regulatory power proved convincing to their contemporaries, while the dominant direction of thought today incorporates a profound distrust of the regulatory state. The main thesis of this Article is that New Dealers perceived regulation as "the modem movement for social and economic prog- ress,"' 2 because they saw it as the only way to repair the damage done by an "unholy and corrupt alliance of business and politics that [had] 13 made economic injustice a regular feature of the American system."' Although the Industrial Revolution had brought America unprecedented economic growth, New Dealers believed that the gains of growth had not been distributed equitably, but instead went disproportionately to the small group of capitalists and entrepreneurs who managed the system. By convincing others of their belief, they were able during the Great Depression to stitch together a coalition of the ill-housed, ill-fed, and underemployed who, through regulation, could advance the interests of nearly the entire community by controlling the depredations of the few. When the regulatory laws of the Great Depression were seen in light of the prosperity of the 1950s, 1960s, and 1970s, however, they assumed

9. Gould v. Bennett, 276 N.Y.S. 113, 116 (Sup. Ct. 1934) (quoting People v. Crane, 108 N.E. 427, 430 (N.Y. 1915)); see also Miller v. City of Niagara Falls, 202 N.Y.S. 549, 550 (App. Div. 1924). 10. For scholarship making such a claim, see generally ALONzO L. HAMBY, LIBERALISM AND ITS CHALLENGERS: FDR TO REAGAN (1985); 7 THE GREAT DEPRESSION AND THE NEW DEAL (Melvyn Dubofsky & Stephen Burwood eds., 1990); THE MAKING OF THE NEW DEAL: THE INSIDERS SPEAK (Katie Louchheim ed., 1983); Frank I. Michelman, Property,Utility, andFairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967). 11. For scholarship making such a claim, see generally RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); RICHARD A. MAIDMENT, THE JUDICIAL RESPONSE TO THE NEW DEAL: THE US SUPREME COURT AND ECONOMIC REGULATION, 1934-1936 (1991); THE INTERACTION OF ECONOMICS AND THE LAW (Bernard H. Siegan ed., 1977). 12. Franklin D. Roosevelt, Fireside Chat on the Plan for the Reorganization of the Judiciary (Mar. 9, 1937), in NOTHING TO FEAR: THE SELECTED ADDRESSES OF FRANKLIN DELANO ROOSEVELT, 1932-1945, at 92, 96 (B.D. Zevin ed., 1946). 13. Douglass Adair, The Tenth FederalistRevisited, 8 WM. & MARY Q. 48, 60 (1951).

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a new appearance. With the majority of Americans no longer poor, the old regulatory laws no longer appeared to benefit the many; instead, they seemed to help smaller, narrower groups that readily came to be perceived as special interests. The perception that special interests were the prime beneficiaries of regulation, in turn, made regulation suspect. Although suspicions arose only gradually, their cumulative effect, in the view of this Article, was substantial. The interest-group perception of regulation was especially slow to emerge at the national level. It emerged first in the states. Accordingly, this Article focuses on state rather than federal regulatory law in order to appreciate the changing understanding of regulation in its fullest sweep. In particular, the Article examines the regulatory law of a single state-New York-the source of many leading regulation cases. By focusing on this one state, which through most of the period under study was the most populous state and the economic and cultural leader of the nation, it becomes possible to analyze not only these leading cases but also the thousands of more mundane cases that applied their holdings on a day-to-day basis. While study of any single state provides only an incomplete sketch of developments in the nation at large, the picture that emerges from New York, will be less incomplete or distorted than that which would emerge from any other jurisdiction. A great advantage of New York is that it has a more complete set of lower court opinions than any other state. Moreover, in one important respect it was more typical of the nation as a whole than any other single state: with its metropolitan center on the Atlantic coast, its upstate industrial cities little different from those of the Midwest, its expanding suburbs, and its rural farmlands and environmentally protected woodlands, New York contained locales similar to those in the rest of the nation except the Deep South and the Far West. One would accordingly expect to find a wider variety of the socio-political forces that shape law in New York than in other jurisdictions. Of course, those forces would converge differently in New York than elsewhere, and the end legal product molded by them would differ. For example, social forces emerging out of the metropolitan center would have greater weight in New York, where New York City typically contained nearly half of the state's population, than in the nation at large, where the City never equalled even five percent of total population. When adjustments are made for these differences in configuration, however, the findings that emerge from this study about how socio- economic forces influenced government's power of regulation in New York can serve as preliminary hypotheses about more general national

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developments, at least until scholars examine in similar detail states such as California and Texas, and a southern state like Georgia. In tracing the efforts to restrict regulatory power as a form of special interest legislation, it is necessary to examine three different areas of legal doctrine-the law of taxation, of eminent domain, and of regulation itself. Tax law has an obvious potential for favoring some interests over others, in that citizens who receive special tax exemptions or monetary handouts from government will gain competitive advantages that will give them great wealth at the expense of those who pay their full tax share and receive no fiscal benefits. The power of eminent domain can also become a mechanism of special favoritism if government can use it to obtain property at less than the price a purchaser would have to pay on the open market, and especially if government can resell the property to a private citizen at less than the price that a citizen would have to pay on the market. Finally, regulatory schemes can favor special interests when they impose added costs on regulated enterprises and then confer benefits on either the customers or the competitors of those enterprises.

II. THE BIRTH OF INTEREST-GRouP POLITICS Even before the regulatory state had reached its fullest fruition during the era of the New Deal, a few prescient thinkers had begun to articulate a new ideology of interest-group politics that would eventually send New Deal ideas of regulation into retreat. Perhaps the first thinker to glimpse the new vision was Judge Learned Hand, who in a 1929 speech before the American Law Institute observed: Sometimes ... we speak of the judges as representing a common- will ..... [But] they are not charged with power to decide the major conflicts, and quickly learn their limitations if they try. We think of the legislature as the place for resolving these, and so indeed it is. But if we go further and insist that there at any rate we have an expression of a common-will .... we should be wrong again. I will not of course, deny that there are statutes of which we can say that they carry something like the assent of a majority. But most legislation is not of that kind; it represents the insistence of a compact 14 and formidable minority.

14. Learned Hand, Is There a Common Will?, 28 MICH. L. REv. 46, 50 (1929).

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One year later a well-known legal academic elaborated as follows on Hand's earlier insight: The task of government... is not to express an imaginary popular will, but to effect adjustments among the various special wills and purposes which at any given time are pressing for realization ... Government, from this point of view, is primarily an arbitrator, and since practically every arbitration must result in giving to one side more of what it thinks it ought to have than the other side is willing to admit, every governmental act can be viewed as favoring in some degree some particular and partial "will," or special interest. It is therefore meaning- less to criticize government... merely because it allows special interests to attain some measure of what they think themselves entitled to. The question is rather whether it allows the "righf' side, the "right" special interest, to win; and the "righf' special interest means only the one whose will is most compatible with what we, as critics, conceive to be the right direction for the society's development to take.'5 Thinking such as this did not become dominant during the Great Depression, when so many people were suffering that the ill-housed, the ill-fed, and the underemployed seemed to constitute the majority rather than a series of diverse special interests. Nonetheless, some slight movement did occur. For example, some New Dealers in the late 1930s began to perceive a need for the enactment of laws designed "to promote the organization of economically weak groups so that they might hold their own against stronger rivals."' 6 This development pointed, in turn, toward a redefinition of democracy as "a society of various groups and classes" whose "power [was] evenly spread," with "economic checks and balances to parallel the political checks and balances" and "a state of tension in society that permit[ted] no one group to dare bid for the total power."' 7 It continued from there with V.O. Key's classic, Politics, Parties,& Pressure Groups, which went through five editions and thirty- one printings between its first appearance in 1942 and its last printing in 1969,"8 and Douglass Adair's 1951 article rescuing Madison's theory of factions in Federalist No. 10 from the dustbin of history,'9 and

15. JohnDickinson,DemocraticRealitiesandDemocraticDogma,24AM. POL. SC. REV. 283, 291-92 (1930). 16. ELLIS W. HAWLEY, THE NEW DEAL AND THE PROBLEM OF MONOPOLY: A STUDY IN ECONOMIC AMBIVALENCE 276 (1966); see also id. at 187-204, 276-80, 483-84. 17. JOHN CHAMBERLAIN, THE AMERICAN STAKEs 31-32 (1940). 18. V.0. KEY, JR., POLITICS, PARTIES, & PRESSURE GROUPS at iii (5th ed. 5th prtg. 1969). 19. Adair, supra note 13.

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arguably culminating in Theodore Lowi's, The End of Liberalism,20 in 1969. Lowi argued persuasively that the progressive New Deal paradigm, under which the people had battled against special interests to achieve the common good, had become vacuous and that, in its place, a new paradigm of "interest-group liberalism"'z had emerged. Under that interest-group paradigm, "[o]rganized interests emerge in every sector of our lives ... answering and checking some other organized group," and "the role of government is one of insuring access to the most effectively organized by, and of ratifying the agreements and adjustments worked out among the competing leaders. ' 2 As this Article demonstrates turning to the analysis of case law developments in New York courts, the new model of interest-group politics plays an important role. It enabled judges to identify statutes passed to accommodate special-interest groups and to differentiate those statutes from others adopted to further the common good. But the new model did not provide judges with a foundation for a new jurisprudence. Unlike the political theorists noted above, New York judges saw nothing affirmative in special-interest legislation. Still adhering to the nineteenth- century principle of Taylor v. Porter3 which outlawed legislative redistributions of property from A to B, New York courts frequently remained committed to the protection and preservation of rights of private property. Just as the courts had extended the regulatory state during the prewar decades, after the Second World War they expanded the protection which they accorded property rights. As this Article illustrates, they acted initially through detailed elaboration of rules of administrative procedure, but ultimately their protection of private property rested on continued recognition of a constitutional right to wealth.

III. THE GROWTH OF PROCEDURAL PROTECTION A central premise of regulatory law throughout the twentieth century has been deference by the judiciary to the political, branches of government. Judges routinely have refused "to pass upon the good faith of

20. THEODORE J. LoWI, THE END OF LIBERALISM: IDEOLOGY, POLICY, AND THE CRISIS OF PUBLIC AUTHORITY (1969). 21. THEODORE J.LoWi, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES 50-52 (2d ed. 1979). 22. Id. at 51. 23. 4 Hill *140 (N.Y. Sup. Ct. 1843).

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public officials in the discharge of their functions." 24 They have found it "essential to a healthy and virile democracy that the acts of its public officials .. ought to be immune from sporadic attacks in the Courts" that were "likely to undermine public confidence," simply because a "taxpayer [had] views of procedure and method[s that] differ[ed] from those of the duly elected and chosen officials."2' 5 Hence the judiciary has always hesitated to "interfere with the exercise of discretion vested by statute in administrative officers. 26 Nonetheless, the courts have demanded that agencies adhere to due process requirements and otherwise act fairly in making decisions. Decisions of an administrative agency, it is said, must "be based upon a consideration of the relevant facts and a fair opportunity must be afforded to present" the facts.27 Moreover, "'no essential element of a fair trial can be dispensed with ...and no vital safeguard violated without rendering' the agency's decision "'subject to reversal upon review."' 28 "A state may not by legislation make anything it declares ... due process of law,"2' 9 which requires "vastly more than an adjudication by some public officer, whose decision is supreme."3 Among the procedural rules that agencies had to follow throughout the 1920s and 1930s were those providing for a quorum3' and voting rights.32 An administrative decision would also be set aside if it was

24. In re Summons for Attendance of Witnesses, 12 N.Y.S.2d 128, 129 (App. Div. 1939); accord M.L. Weiss, Inc. v. Whalen, 238 N.Y.S. 95, 98 (N.Y. City Mun. Ct. 1929). 25. Town of Irondequoit v. Monroe County, 11 N.Y.S.2d 933, 943 (Sup. Ct. 1939). 26. Nalore v. Baker, 279 N.Y.S. 944, 948 (App. Div. 1935). o 27. People ex rel. Hirschberg v. Board of Supervisors, 167 N.E. 204, 207 (N.Y. 1929). 28. Id. (quoting In re Greenebaum, 94 N.E. 853, 855 (N.Y. 1911)); accordGrandview Dairy, Inc. v. Baldwin, 269 N.Y.S. 116, 119 (App. Div. 1934). In particular, due process was not satisfied if a party was not permitted to bring relevant evidence before a tribunal. See In re Vanderbilt's Estate, 22 N.E.2d 379, 389 (N.Y. 1939), affd sub nom. Whitney v. State Tax Comm'n, 309 U.S. 530 (1940); Schermerhom v. General Elec. Co., 186 N.Y.S. 835, 837 (App. Div. 1921); In re Goldberg's Estate, 283 N.Y.S. 72 (Sur. Ct. 1935), aff'd, 291 N.Y.S. 999 (App. Div. 1936), rev'd on other grounds, 9 N.E.2d 829 (N.Y. 1937). However, the war powers of Congress trumped any requirement of due process, at least when the government was dealing with enemy aliens. See Miller v. Lautenburg, 205 N.Y.S. 214,219 (App. Div. 1924), afd, 145 N.E. 907 (N.Y. 1924). 29. City of Buffalo v. Neubeck, 204 N.Y.S. 737, 740-41 (App. Div. 1924). 30. Brooks v. Wyman, 217 N.Y.S. 751, 755 (Sup. Ct. 1926), rev'd on other grounds, 220 N.Y.S. 615 (App. Div.), aff'd, 159 N.E. 640 (N.Y. 1927). 31. See Morris v. Cashmore, 3 N.Y.S.2d 624, 629-30 (App. Div.), aj'd, 17 N.E.2d 143 (N.Y. 1938); Talbot v. Board of Educ., 14 N.Y.S.2d 340, 343-45 (Sup. Ct. 1939). The legislature could, however, authorize one member of an agency to act for the entire agency. See Algeri v. Brady & Gioe, Inc., 7 N.Y.S.2d 812 (App. Div. 1938). 32. See Farrell v. Board of Health, 276 N.Y.S. 907, 909 (App. Div. 1935).

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"'arbitrary, tyrannical and unreasonable,' 3 3 or "based on a finding of fact... not supported by common-law proof of a probative character."34 Finally, administrative actions would be set aside if they were taken pursuant to an unconstitutional statute35 or in excess of statutorily conferred powers,36 since it was never "within the discretion of an administrative body, no matter how 'progressive', to substitute its own views in place of the legislative mandate. 37 The trend during the two decades after World War II was to buttress these due process requirements in administrative law. The massive bureaucracy that had been put into place during and before World War II to advance and enforce particular legislative policy goals had matured from a set of informal policymaking entities into a sort of second-string judiciary. By the end of the 1960s, as the New York Court of Appeals ("Court of Appeals") observed in one administrative law case, "administrative inquiries" had become "endowed with many of the attributes of a legal proceeding, including notices of hearings, adjournments,

33. Columbia Yacht Club v. Moses, 272 N.Y.S. 563, 567 (Sup. Ct. 1934) (quoting People ex rel. Lodes v. Department of Health, 82 N.E. 187, 189 (N.Y. 1907)). 34. Townley v. Bruckman, 5 N.Y.S.2d 899,903 (Sup. Ct. 1938); accordDillon v. Schapp Beef Co., 4 N.Y.S.2d 85, 86 (App. Div. 1938); Strauss v. Hannig, 10 N.Y.S.2d 76, 77 (Sup. Ct. 1938), rev'd on other grounds, 11 N.Y.S.2d 102 (App. Div.), affd, 22 N.E.2d 174 (N.Y. 1939). However, administrative agencies were "not restricted by technical rules or procedure," Hardenbrook v. Combs, 290 N.Y.S. 290,293 (Sup. Ct. 1936), or formal rules of evidence. See, e.g., People ex rel. Hirschberg v. Board of Supervisors, 167 N.E. 204, 207 (N.Y. 1929). 35. See Reed v. Littleton, 9 N.E.2d 814, 816 (N.Y. 1937). 36. See Rees v. Teachers' Retirement Bd., 224 N.Y.S. 544, 546 (App. Div. 1927), rev'd on other grounds, 160 N.E. 644 (N.Y. 1928); Rochester Gas & Elec. Corp. v. Maltbie, 15 N.Y.S.2d 163, 167 (Sup. Ct. 1939), rev'd on other grounds, 18 N.Y.S.2d 630 (App. Div.), aff'd, 29 N.E.2d 936 (N.Y. 1940); Talbot v. Board of Educ., 14 N.Y.S.2d 340, 345 (Sup. Ct. 1939); Levi v. Regents of the Univ. of N.Y., 8 N.Y.S.2d 19, 23 (Sup. Ct. 1938), rev'd on other groundssub nom. Erlanger v. Regents of the Univ. of N.Y., 10 N.Y.S.2d 1013 (App. Div.), aff'd sub nom. Levi v. Regents of the Univ. of N.Y., 22 N.E.2d 178 (N.Y. 1939). 37. Bridgman v. Kern, 13 N.Y.S.2d 249, 254 (App. Div. 1939), aff'd, 26 N.E.2d 299 (N.Y. 1940). For the same reason, statutes that delegated legislative power to administrative agencies were void. See People v. Ryan, 195 N.E. 822, 824 (N.Y. 1935); Schumer v. Caplin, 150 N.E. 139, 140 (N.Y. 1925) (dictum); People v. Grant, 275 N.Y.S. 74, 79 (App. Div. 1934), afftd, 196 N.E. 553 (N.Y. 1935); Moses v. Guaranteed Mortgage Co., 268 N.Y.S. 530, 534-35 (App. Div.), rev'd, 191 N.E. 523 (N.Y. 1934) (no opinion); Merkle v. Paschkes, 204 N.Y.S. 102, 103 (App. Term. 1922); Hudson-Harlem Valley Title & Mortgage Co. v. White, 8 N.Y.S.2d 599, 604-05 (Sup. Ct. 1938), aff'd, 10 N.Y.S.2d 346 (App. Div. 1939); cf. In re Schuster, 182 N.Y.S. 357, 359 (Sup. Ct. 1920) (holding that the President cannot delegate judicial acts to administrative officials). However, statutes would be upheld if they contained standards sufficient to ensure that the agency would be bound to the legislature's policy choices. See, e.g., People v. Sullivan, 280 N.Y.S. 48, 52 (App. Div. 1935) (dictum); Schlesinger v. Kofsky-Moos, Inc., 276 N.Y.S. 980, 987 (N.Y. City Mun. Ct. 1934).

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amendment of charges, taking of testimony, availability of transcripts, filing of briefs, etc. 38 The driving force behind this legalization of administrative procedure was a concern "not only that justice be done but that the appearance of justice be apparent. 39 In the pursuit of justice, judges came to regard it as "'the duty of the courts to set at naught arbitrary and unfounded administrative holdings,"' 40 for the purpose of "correcting administrative abuses,"' and to set at naught "mechanical exercise[s] of administrative judgment" stemming from "internal policy and rules of thumb practice" that constituted "an arbitrary, unreasonable and capricious manner of making determinations." ' The very fact that the bureaucracy had broad powers and discretion to favor some interests in preference of others made it "imperative that the courts exercise the necessary supervision to assure that the decisional process on the administrative level [was] free from impermissible or irrelevant considerations or unsupported conclusions" 3 and to remind agencies of their "'heavy responsibility' to engage in "'conscientious and painstak- ing assessment of the evidence presented."'" Even when the legislature declared administrative decisions final and not subject to judicial review, the result was not to eliminate all "judicial scrutiny whatsoever," since the courts still had "the power and the duty to make certain that the administrative official ha[d] not acted in excess of the grant of authority given him by statute or in disregard of the standard prescribed by the legislature."4 The linchpin upon which the legalization of the administrative process rested was a distinction that the courts created between the legislative and judicial functions of administrative agencies. As the Court of Appeals declared in the 1954 case of Hecht v. Monaghan,46 "the

38. Hacker v. State Liquor Auth., 225 N.E.2d 512, 516 (N.Y. 1967). 39. Cummings v. Regan, 350 N.Y.S.2d 119, 127 (Sup. Ct. 1973), aft'd, 357 N.Y.S.2d 260 (App. Div. 1974), rev'd on other grounds, 335 N.E.2d 864 (N.Y. 1975). 40. Swalbach v. State Liquor Auth., 166 N.E.2d 811, 813 (N.Y. 1960) (quoting In re Rumsey Mfg. Corp., 71 N.E.2d 426, 428 (N.Y. 1947)). 41. Wager v. State Liquor Auth., 151 N.Y.S.2d 274,276 (Sup. Ct. 1956), aftd, 163 N.Y.S.2d 1020 (App. Div. 1957), rev'd on other grounds, 151 N.E.2d 869 (N.Y. 1958). 42. Weiss v. Herman, 216 N.Y.S.2d 829, 833 (Sup. Ct. 1961), affd, 229 N.Y.S.2d 152 (App. Div. 1962). 43. Rochester Colony, Inc. v. Hostetter, 241 N.Y.S.2d 210, 215 (App. Div. 1963). 44. Kilgus v. Board of Estimate, 127 N.E.2d 705, 710 (N.Y. 1955) (quoting Weekes v. O'Connell, 107 N.E.2d 290, 293 (N.Y. 1952)). 45. Guardian Life Ins. Co. v. Bohlinger, 124 N.E.2d 110, 114 (N.Y. 1954). 46. 121 N.E.2d 421 (N.Y. 1954).

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functions of an administrative agency fall into two broad categories, legislative and judicial. '47 In drawing "the line of demarcation between" them, the court held that "'a judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.... Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule .... ,,4S "The important criteria" that distinguished judicial from legislative activity on the part of an administrative agency, according to the court, were "(1) the presence of parties, (2) the trial and determination of issues, and (3) a final order or judgment of rights, duties or liabilities. 49 When "an administrative tribunal [was] acting in a judicial or quasi- judicial capacity," the Court of Appeals held in Hecht that "no essential element of a fair trial [could] be dispensed with unless waived. 5 "The protection of basic fundamental rights... [was] highly important and necessary in an administrative... as well as in a purely judicial proceeding."'" This meant that a "party whose rights [were] being determined [had] to be fully apprised of the proof to be considered, with the concomitant opportunity to cross-examine witnesses, inspect documents and offer evidence in rebuttal or explanation. 52 Thus, the "first fundamental of due process" -"notice of the charges made"--applied to an agency proceeding, and no person could "lose substantial rights because of wrongdoing shown by the evidence, but not charged."53 A party to an administrative adjudication also had a right

47. Id. at 424. 48. Id. (quoting Prentis v. Atlantic Coast Line, 211 U.S. 210, 226 (1908)). 49. In re Klein, 131 N.E.2d 888, 891-92 (N.Y. 1956). 50. 121 N.E.2d at 425; accord Mayo v. Hopeman Lumber & Mfg. Co., 307 N.Y.S.2d 691, 694-95 (App. Div. 1970); Ryan v. New York State Liquor Auth., 79 N.Y.S.2d 827, 831 (App. Div. 1948); Busking v. Kronimus, 247 N.Y.S.2d 149, 152 (Sup. Ct. 1963), aff'd, 255 N.Y.S.2d 312 (App. Div. 1964). 51. Costello v. New York State Liquor Auth., 236 N.Y.S.2d 453, 455 (App. Div. 1963). 52. Simpson v. Wolansky, 343 N.E.2d 274, 277 (N.Y. 1975); accord Papasidero v. Fasano, 227 N.E.2d 386, 388 (N.Y. 1967); Tufariello v. Barry, 401 N.Y.S.2d 210, 211 (App. Div. 1978); Epstein v. Cort Watch Co., 179 N.Y.S.2d 620, 623 (App. Div. 1958); O'Dea's Bar & Restaurant, Inc. v. New York State Liquor Auth., 201 N.Y.S.2d 340, 343 (Sup. Ct. 1960); cf. William H. Van Vleck, Inc. v. Klein, 271 N.Y.S.2d 64, 68 (Sup. Ct. 1966) (stating that an interested party should be afforded the opportunity to present evidence and refute the testimony of biased witnesses). 53. Murray v. Murphy, 247 N.E.2d 143, 147 (N.Y. 1969); accord Ryan v. Temporary State Comm'n of Investigation, 230 N.Y.S.2d 97, 99 (App. Div.), aff'd, 186 N.E.2d 121 (N.Y. 1962); Switsky v. Herman, 202 N.Y.S.2d 139, 140 (App. Div. 1960).

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to have subpoenas issued to assist in the gathering of evidence 4 and a further right to have potentially exculpatory evidence turned over to him.55 "[W]hile strict adherence to technical rules of evidence [was] not required at administrative hearings, ' 56 those rules were effectively in place. Thus incompetent witnesses could not testify in administrative proceedings, 57 the fruits of unlawful searches were inadmissible in evidence,58 and, although hearsay was admissible, it could not constitute the only evidence on which an administrative determination rested. 9 Such sorts of evidentiary objections were waived, however, if not made 0 in a timely fashion. Administrative hearings normally had to be held in public6' under

54. Courts often deal with the complex issues arising in reference to issuance of subpoenas. See Goldin v. Greenberg, 404 N.E.2d 722 (N.Y. 1980); Irwin v. Board of Regents, 265 N.E.2d 752 (N.Y. 1970); Neiman v. Axelrod, 434 N.Y.S.2d 817 (App. Div. 1980); Carvel Corp. v. Lefkowitz, 431 N.Y.S.2d 615 (App. Div. 1980); Whalen v. John P., 422 N.Y.S.2d 256 (App. Div. 1979); Nicholson v. State Comm'n on Judicial Conduct, 414 N.Y.S.2d 550 (App. Div. 1979); Gaglia v. Starr, 398 N.Y.S.2d 898 (App. Div. 1977); Reynolds v. Triborough Bridge & Tunnel Auth., 94 N.Y.S.2d 841 (App. Div. 1950); In re Dairymen's League Co-op. Ass'n, 84 N.Y.S.2d 749 (App. Div. 1948), aff'd, 86 N.E.2d 509 (N.Y. 1949); Walston v. Axelrod, 435 N.Y.S.2d 493 (Sup. Ct. 1980); cf.Corporation Counsel v. Smith, 135 N.E.2d 603, 603 (N.Y. 1956) (concerning the taking of nonresident witness' testimony); In re Clark, 301 N.Y.S.2d 804 (Sup. Ct. 1969) (concerning pre- hearing discovery). 55. See, e.g., Taibbi v. New York State Liquor Auth., 367 N.Y.S.2d 649,652 (Sup. Ct.), rev'd on other grounds, 370 N.Y.S.2d 277 (App. Div. 1975); cf.State Comm'n for Human Rights v. Suburban Assocs., Inc., 286 N.Y.S.2d 733,738 (Sup. Ct. 1967) (holding that destruction of interview notes was permitted when official records containing the same information were turned over), modijfied, 310 N.Y.S.2d 1019 (App. Div. 1970). 56. Marchesi v. Cowan, 297 N.Y.S.2d 595, 596 (App. Div. 1969); accord Benjamin v. State Liquor Auth., 195 N.E.2d 889, 891 (N.Y. 1963). 57. See Brown v. Ristich, 325 N.E.2d 533, 538 (N.Y. 1975). 58. See People ex rel. Piccarillo v. New York State Bd. of Parole, 397 N.E.2d 354, 358 (N.Y. 1979); People v. McGrath, 385 N.E.2d 541, 544 (N.Y. 1978) (dictum); Finn's Liquor Shop, Inc. v. State Liquor Auth., 249 N.E.2d 440, 446 (N.Y. 1969); McPherson v. New York City Hous. Auth., 365 N.Y.S.2d 862, 864 (App. Div. 1975); Leogrande v. State Liquor Auth., 268 N.Y.S.2d 433, 437- 38 (App. Div. 1966), rev'd on other grounds, 227 N.E.2d 302 (N.Y. 1967). 59. See Ayala v. Toia, 398 N.Y.S.2d 567, 568 (App. Div. 1977); Zimmerman v. Board of Regents, 294 N.Y.S.2d 435, 437 (App. Div. 1968); Augustine v. Berger, 388 N.Y.S.2d 537, 540 (Sup. Ct. 1976); People ex rel. Warren v. Mancusi, 332 N.Y.S.2d 442, 444 (Wyoming County Ct, 1971), affd, 339 N.Y.S.2d 882 (App. Div. 1973). Some courts held that admission of hearsay would invalidate an administrative determination even when it was corroborated by other evidence. See Scarpitta v. Glen Cove Hous. Auth., 367 N.Y.S.2d 542, 544-45 (App. Div. 1975); Griffith v. Wyman, 333 N.Y.S.2d 703, 705 (App. Div. 1972); Erdman v. Ingraham, 280 N.Y.S.2d 865, 870 (App. Div. 1967). 60. See Gonzalez v. State Liquor Auth., 282 N.E.2d 101, 102 (N.Y. 1972); Sowa v. Looney, 244 N.E.2d 243, 245 (N.Y. 1968); Leogrande v. State Liquor Auth., 227 N.E.2d 302, 303 (N.Y. 1967). 61. See Applegate v. Waterfront Comm'n, 204 N.Y.S.2d 197, 199 (Sup. Ct. 1960) (dictum).

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6 the control of an impartial public official. ' Administrative decisionmakers could not base their judgments on personal knowledge or other matters outside the record of any proceeding, 63 and were required to make specific fact-findings in support of their conclusions.' Their decisions "like 'the common law concept... call[ed] for ' 65 consistency between decisions in like cases in the same jurisdiction' 5 and had to be in favor of the party who proved "its allegations by a preponderance of the credible evidence. 66 If the courts did not review

62. See Komyathy v. Board of Educ., 348 N.Y.S.2d 28, 38 (Sup. Ct. 1973); New York Evening Enquirer, Inc. v. Kennedy, 162 N.Y.S.2d 530, 532 (Sup. Ct. 1957). It was not necessary, however, that the person or persons who made the decision personally hear all the evidence. See Rothkoff v. Ratner, 428 N.Y.S.2d 138, 140 (Sup. Ct. 1980). 63. See Simpson v. Wolansky, 357 N.Y.S.2d 878, 879 (App. Div. 1974), aff'd, 343 N.E.2d 274 (N.Y. 1975); In re Palmer, 87 N.Y.S.2d 655, 659 (App. Div.), rev'd on other grounds sub nom. Palmer v. Spaulding, 87 N.E.2d 301 (N.Y. 1949); Hague v. Sedita, 288 N.Y.S.2d 212,215 (Sup. Ct. 1968); see also Syosset Holding Corp. v. Schlimm, 159 N.Y.S.2d 88, 93 (Sup. Ct. 1956) (holding that administrative body must disclose any personal knowledge on which it relies), modified, 164 N.Y.S.2d 890 (App. Div. 1957). 64. See Montauk Improvement, Inc. v. Proccacino, 363 N.E.2d 344, 345 (N.Y. 1977); Barry v. O'Connell, 100 N.E.2d 127, 129 (N.Y. 1951); Collins v. Behan, 33 N.E.2d 86, 86 (N.Y. 1941); New York State Guernsey Breeders Co-op., Inc. v. Noyes, 30 N.E.2d 471,474 (N.Y. 1940); Mariotti v. Turecki, 279 N.Y.S.2d 67, 68 (App. Div. 1967); Villaggio Italia, Inc. v. New York State Liquor Auth., 256 N.Y.S.2d 746, 747 (App. Div. 1965); Wnek Vending & Amusements Co. v. City of Buffalo, 434 N.Y.S.2d 608, 614-15 (Sup. Ct. 1980); Elwood Investors Co. v. Behme, 361 N.Y.S.2d 488, 492 (Sup. Ct. 1974); cf Goderre v. City of Peekskill, 417 N.E.2d 565, 566 (N.Y. 1980) (allowing hearing examiner to rely on findings and conclusions of related court proceeding where examiner gave petitioner opportunity to present refuting evidence). 65. Association for Psychoanalysis, Inc. v. Simon, 232 N.Y.S.2d 658, 660 (Sup. Ct. 1961) (quoting FREDERICK C. HICKS, MATERIALS AND METHODS OF LEGAL RESEARCH 43 (3d ed. 1942)), rev'd on other grounds, 250 N.Y.S.2d 253 (App. Div. 1964); accord Slominski v. Codd, 382 N.Y.S.2d 773, 774 (App. Div. 1976), aff'd, 364 N.E.2d 1134 (N.Y. 1977); cf. In re Dresher, 146 N.Y.S.2d 428, 431-32 (App. Div. 1955) (stating that agency decisions did not necessarily need to be consistent, but previous decisions in like cases ought to be followed unless clearly based on faulty policy). 66. Martin v. Ambach, 429 N.Y.S.2d 524, 526 (Sup. Ct. 1980), rev'd on other grounds, 446 N.Y.S.2d 468 (App. Div. 1981), affd, 443 N.E.2d 953 (N.Y. 1982). On judicial review, judges were required to sustain administrative fact findings that were rationally supported by substantial evidence. See 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 379 N.E.2d 1183, 1185 (N.Y. 1978); Malacarne v. City of Yonkers Parking Auth., 359 N.E.2d 992, 995 (N.Y. 1976); Pell v. Board of Educ., 313 N.E.2d 321, 325 (N.Y. 1974); Sullivan County Harness Racing Ass'n v. Glasser, 283 N.E.2d 603, 607 (N.Y. 1972); Colgate-Palmolive-Peet Co. v. Joseph, 125 N.E.2d 857, 859 (N.Y. 1955); Holland v. Edwards, 119 N.E.2d 581, 584 (N.Y. 1954); Tompkins v. Board of Regents, 87 N.E.2d 517, 520 (N.Y. 1949); State Div. of Human Rights v. Union Carbide Corp., 310 N.Y.S.2d 396,398 (App. Div. 1970); River House in Riverdale Assocs. v. Booth, 273 N.Y.S.2d 291, 294 (Sup. Ct. 1966); Rossi v. O'Connell, 95 N.Y.S.2d 517, 520 (Sup. Ct.), aff'd, 98 N.Y.S.2d 212 (App. Div. 1950). Moreover, judges claimed that, "because of the special capability, competence and experience" of agencies, they accorded special "respect and weight" to administrative determinations,

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and reverse an administrative determination, it became final and had the same res judicata effect as the final judgment of a court.67 One important right that the New York courts did not fully extend to administrative proceedings was the right to counsel. Although they did hold that parties had a right to appear with retained counsel at administrative proceedings and that agency actions in the absence of such opportunity were void," they refused to uphold a right to assignment of free counsel to indigents, 69 even though they recognized that "by reason of the present day complexities of administrative proceedings the layman who . . . represent[s] himself does so at a peril that is indeed substantial."70 The rule giving the right to retain counsel to people who could afford lawyers and who, in zoning cases, license revocation cases and the like, had large amounts of money at stake, probably did more than anything else to legalize the administrative process in the post World War II years and thereby weaken the bureaucracy's power to impose redistributional legislative policies on the rich. At the same time, the denial of counsel to the poor kept the administrative process informal in

Ahsaf v. Nyquist, 332 N.E.2d 880, 881 (N.Y. 1975); accord Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 106 N.E.2d 12, 15 (N.Y. 1952); Avon Bar & Grill, Inc. v. O'Connell, 93 N.E.2d 573,574 (N.Y. 1950), even though they did, on occasion, reverse fact findings with which they disagreed. See Playboy Club, Inc. v. State Liquor Auth., 245 N.E.2d 697, 700 (N.Y. 1969); Ralph v. Board of Estimate, 119 N.E.2d 37,40 (N.Y. 1954); McCormack v. National City Bank, 99 N.E.2d 887, 888 (N.Y. 1951); 54 Cafe & Restaurant, Inc. v. O'Connell, 84 N.Y.S.2d 729, 732 (App. Div. 1948), affJd, 84 N.E.2d 802 (N.Y. 1949). 67. See Colton v. Berman, 234 N.E.2d 679, 686 (N.Y. 1967) (dictum); Evans v. Monaghan, 118 N.E.2d 452,457-58 (N.Y. 1954) (dictum); Bemstein v. Birch Wathen Sch., 421 N.Y.S.2d 574, 575 (App. Div. 1979), affrd, 415 N.E.2d 982 (N.Y. 1980); Tirdell v. State Liquor Auth., 225 N.Y.S.2d 183, 184 (App. Div. 1962), affd, 188 N.E.2d 788 (N.Y. 1963); State v. Moskowitz, 427 N.Y.S.2d 913, 914 (Sup. Ct. 1980); Bronx Eye & Ear Infirmary v. New York City Comm'n on Human Rights, 284 N.Y.S.2d 218,221 (Sup. Ct. 1967); Infante v. Donohue, 249 N.Y.S.2d 100, 104 (Sup. Ct. 1964); Hurvdtz v. Caputa, 207 N.Y.S.2d 153, 157 (Sup. Ct. 1960); 609 Holding Corp. v. McGoldrick, 115 N.Y.S.2d 395, 402 (Sup. Ct. 1952). But see Venes v. Community Sch. Bd., 373 N.E.2d 987, 988, 989 (N.Y. 1978) (stating that the policy behind the doctrine of res judicata is not applicable to all administrative proceedings); Siegel v. Mangan, 16 N.Y.S.2d 1000, 1002 (App. Div.) (stating that administrative action was executive rather than judicial in nature and thus not subject to res judicata), affd, 27 N.E.2d 280 (N.Y. 1940); B'rith Abraham v. Thacher, 249 N.Y.S.2d 978, 980 (Sup. Ct. 1964) (stating that administrative action was not bound by previously reached decision). 68. See Rivera v. Blum, 420 N.Y.S.2d 304, 310 (Sup. Ct. 1978); May v. Shaw, 386 N.Y.S.2d 625, 628 (Sup. Ct. 1976), affd, 396 N.Y.S.2d 258 (App. Div. 1977); Romeo v. Union Free Sch. Dist. No. 3, 368 N.Y.S.2d 726, 730-31 (Sup. Ct. 1975). 69. See Henegar v. Wyman, 313 N.Y.S.2d 318, 320 (Sup. Ct. 1970). 70. New York State Comm'n for Human Rights v. E. Landau Indus., 293 N.Y.S.2d 917, 920 (Sup. Ct. 1968).

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areas such as welfare and public housing law and left bureaucrats with overwhelming power to accomplish their goals, often at the peril of the poor.7' A final way in which the courts furthered legalization of the administrative process was by a set of decisions weakening at the margins the classical doctrines requiring exhaustion of administrative remedies72 and prohibiting collateral attacks on agency decisions.73 Courts held, for example, that individuals seeking judicial review were "not required to exhaust their administrative remedies where to do so would be an exercise of futility"7' 4 or where they were "in any emergency situation."75 Collateral attacks were permitted, for instance, in a suit involving different issues than those ripe for agency adjudication,76 in a case raising a constitutional challenge, 7 in a suit by a competitor based on a statute reflecting "an overriding legislative purpose to prevent destructive competition,' ' and "in an appropriate case, to prevent 79 injustice. The courts intruded far less into the legislative than into the adjudicative side of the administrative process. On the legislative side, their main task was to enforce the proscription that the "[i]egislature may constitutionally delegate rule-making authority to an administrative

71. For a rare case in which a pro bono attorney was able to rescue a case that had been lost at an informal hearing, see Williams v. White PlainsHousing Authority, 309 N.Y.S.2d 454 (Sup. Ct.), aft'd, 317 N.Y.S.2d 935 (App. Div. 1970). 72. See Young Men's Christian Ass'n v. Rochester Pure Waters Dist., 334 N.E.2d 586, 588 (N.Y. 1975); Geherin v. Sylvester, 429 N.Y.S.2d 114, 115 (App. Div. 1980); Sardino v. Finch, 314 N.Y.S.2d 690, 691 (App. Div. 1970); State Div. of Human Rights v. Merante, 312 N.Y.S.2d 1015, 1017 (App. Div. 1970); City of New York v. Public Serv. Comm'n, 244 N.Y.S.2d 428,429-30 (Sup. Ct. 1963). 73. See Foy v. Schechter, 136 N.E.2d 883, 887 (N.Y. 1956); Central Hudson Gas & Elec. Corp. v. Napoletano, 101 N.Y.S.2d 57,59 (App. Div. 1950); Metropolitan Club, Inc. v. Consolidated Edison Co., 96 N.Y.S.2d 144, 145 (App. Div. 1950); Lande v. McGoldrick, 132 N.Y.S.2d 661, 662- 63 (Sup. Ct. 1954). 74. Veit v. Barbaro, 298 N.Y.S.2d 251, 253 (Sup. Ct. 1969); accord Usen v. Sipprell, 342 N.Y.S.2d 599, 604 (App. Div. 1973); Caruso v. McGoldrick, 133 N.Y.S.2d 531,533 (Sup. Ct. 1954); Michaels v. Macan Estates, Inc., 99 N.Y.S.2d 103,107 (Sup. Ct. 1950), rev'don other grounds, 103 N.Y.S.2d 142 (App. Div. 1951). 75. Rothbaum v. Ebel, 354 N.Y.S.2d 545, 549 (Civ. Ct. 1974); accord Wildstein v. Barbaro, 304 N.Y.S.2d 531, 533 (Sup. Ct. 1969). 76. See Warshak v. Eastern Air Lines, Inc., 78 N.Y.S.2d 413, 414 (N.Y. City Ct. 1948). 77. See Varacchi v. State Univ. of N.Y., 310 N.Y.S.2d 751, 753-54 (Sup. Ct. 1970); cf. Prendergast v. Board of Educ., 80 N.Y.S.2d 739, 743 (Sup. Ct. 1948) (involving interpretation of statute), rev'd on other grounds, 89 N.Y.S.2d 701 (App. Div. 1949). 78. Dairylea Coop., Inc. v. Walkley, 339 N.E.2d 865, 869 (N.Y. 1975). 79. Oleshko v. New York State Liquor Auth., 285 N.Y.S.2d 696, 699 (App. Div. 1967), aff'd, 235 N.E.2d 447 (N.Y. 1968).

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agency only if it furnishes the agency with at least a broad outline" or set of standards "within which to act."8 They also enforced the corollary that "[a]dministrative agencies [could] only promulgate rules to further the implementation of the law" as it was handed to them and had "no authority to create a rule out of harmony with the statute." 8' In one important case, for example, the Court of Appeals struck down a policy of the State Liquor Authority to prohibit the opening of liquor package stores in shopping centers-a policy designed to preserve neighborhood stores--on the ground that the policy was without statutory support.82 On the whole, however, judges showed considerable deference to administrative rule making. Recognizing that any statute, "but particularly social legislation, . . must be interpreted and enforced in a reasonable and humane manner in accordance with its manifest intent and purpose,"8' 3 the Court of Appeals ruled that "required standards need only be prescribed in so much detail as is reasonably practicable in light of the complexities of the area to be regulated."84 They also accorded administrative regulations the force of statute85 and allowed administra-

80. Bates v. Toia, 382 N.E.2d 1128, 1130 (N.Y. 1978); accord McNulty v. Chinlund, 406 N.Y.S.2d 558, 561 (App. Div. 1978); Barton Trucking Corp. v. O'Connell, 180 N.Y.S.2d 686, 689- 90 (App. Div. 1958), rev'd on other grounds, 165 N.E.2d 163 (N.Y. 1959); Wharram v. City of Utica, 431 N.Y.S.2d 230, 231 (Sup. Ct. 1979). 81. Jones v. Berman, 332 N.E.2d 303, 308 (N.Y. 1975); accordOstrer v. Schenck, 364 N.E.2d 1107, 1108-09 (N.Y. 1977); Sigety v. Ingraham, 272 N.E.2d 524, 526 (N.Y. 1971); In re Federal Tel. & Radio Corp., 92 N.E.2d 907, 909 (N.Y. 1950); Humphrey v. State Ins. Fund, 83 N.E.2d 539, 541 (N.Y. 1949); Dairy Barn Stores, Inc. v. State Liquor Auth., 430 N.Y.S.2d 636, 637 (App. Div. 1980), aff'd, 420 N.E.2d 978 (N.Y. 1981); Mennella v. Board of Estimate, 298 N.Y.S.2d 446, 451 (App. Div. 1969); Whitmarsh v. Famell, 78 N.Y.S.2d 782, 786 (App. Div. 1948), rev'd on other grounds, 83 N.E.2d 543 (N.Y. 1949); Edenwald Contracting Co. v. City of New York, 384 N.Y.S.2d 338, 341 (Sup. Ct. 1974), aff'd, 366 N.Y.S.2d 363 (App. Div. 1975); Kasper v. O'Connell, 237 N.Y.S.2d 722,724 (Sup. Ct. 1963); cf Sleepy Hollow Valley Comm. v. McMorran, 229 N.E.2d 32, 35 (N.Y. 1967) (holding that superintendent of public works had limited power to alter highway route despite legislature's explicit provision of exact route). 82. See Swalbach v. State Liquor Auth., 166 N.E.2d 811, 814-15 (N.Y. 1960); cf Murphy v. Wyman, 328 N.Y.S.2d 520, 530 (Sup. Ct. 1972) (stating that soundness of general policy does not authorize administrative action, even though supported by statute, when such action is arbitrary or capricious). 83. Sabot v. Lavine, 369 N.E.2d 1173, 1174 (N.Y. 1977). 84. Suffolk County Builders Ass'n v. County of Suffolk, 389 N.E.2d 133, 136 (N.Y. 1979); accord Marburg v. Cole, 36 N.E.2d 113, 117 (N.Y. 1941); Tilelli v. Christenberry, 120 N.Y.S.2d 697,701 (Sup. Ct. 1953); cf Kieran v. Bronstein, 342 N.Y.S.2d 977, 981 (Sup. Ct. 1973) (holding that subdelegation of administrative functions impliedly authorized). 85. See Severino v. Ingraham, 397 N.Y.S.2d 236, 237 (App. Div. 1977), rev'd on other grounds, 377 N.E.2d 472 (N.Y. 1978); Bethlehem Steel Co. v. Joseph, 130 N.Y.S.2d 178, 181 (App. Div. 1954); cf Conlon v. McCoy, 278 N.Y.S.2d 449, 451 (App. Div. 1967) (holding that an administrative body was bound by its own rules), modifled, 239 N.E.2d 614 (N.Y. 1968).

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tive agencies the power to alter their rules.86 Finally, they gave "great weight" to an agency's construction of its enabling legislation.87 In their efforts to hold administrative agencies to rules of due process and fair decisionmaking in accordance with statutory standards, judges sought, in short, to attain a balance between protecting preexisting rights and allowing the legislature to advance the social policies desired by the majority. Their goal was to give deference to administrative policy judgments made in accordance with strictly applied statutory and procedural standards. Legislative views of social justice, redistributional or otherwise, would thereby be given effect, but administrators themselves would have their freedom narrowly constrained. In view of the role played in the administrative process by lawyers, who typically represented the rich and rarely represented the poor, it is not clear, however, that much scope was left for the attainment of the redistributional ends that had been at the heart of the New Deal's vision of social justice, with its goal of helping poor multitudes at the expense of a few rich.

IV. THE INVALIDATION OF CONFISCATORY AND SPECIAL-INTEREST REGULATIONS Even when administrative agencies had acted fairly and in pursuit of their statutory mandates, the courts did not always sustain their actions. Despite the enormous amount of regulation upheld in the decades after World War II, the legislature's power to regulate did not become plenary and unlimited. Unlike the Supreme Court of the United States, New York courts after 1937 remained unwilling to defer totally to the political process and to the practical compromises to which politics inevitably led. Although New York judges construed regulatory, tax, and takings powers expansively in the post-World War II era and applied them to a variety of new problems, they still insisted on preserving some constitutional limitations on the powers' exercise. Unlike the Supreme Court, New York courts did not switch in 1937 from being jealous of legislative power to being deferential to it; both before and after 1937, New York judges were deferential to legislatures while simultaneously

86. See Green v. Lang, 223 N.E.2d 19, 22 (N.Y. 1966). 87. Harbolic v. Berger, 371 N.E.2d 499, 503 (N.Y. 1977) (dictum); accord Leathersich v. Wade, 249 N.Y.S.2d 609, 610 (App. Div. 1964); People v. Famous Beers, Inc., 102 N.Y.S.2d 318, 319 (App. Div. 1951); Prince v. Davis, 87 N.Y.S.2d 600, 605 (New Rochelle City Ct. 1949); cf. Pinsley v. New York State Racing & Wagering Bd., 428 N.Y.S.2d 527, 528 (App. Div. 1980) (giving great weight to agency interpretation of its own regulations).

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striving to keep them under ultimate constitutional control in an effort to prevent capture by special interests.

A. Zoning Especially in the field of zoning, judges invalidated a number of statutes and municipal ordinances as unconstitutional takings of property violative of the Fourteenth Amendment of the Federal Constitution and similar state protections. Thus, the Court of Appeals held in one case that a municipality could not act for purely aesthetic reasons when its zoning ordinance did not give it specific authorization to so act, 8 while lower courts struck down legislation prohibiting construction on oceanfront land that prevented an owner from making any use whatsoever of his or her property.89 More generally, the Court of Appeals throughout the period under study held that any zoning ordinance could "be stricken down as invalid" if it "prove[d] confiscatory." 9 It first made that statement in 1954 in Vernon Park Realty, Inc. v. City of Mount Vernon, where it invalidated an ordinance requiring a landowner to develop its property as a parking facility instead of downtown commercial business property.9' It repeated the essence of the statement in 1960,92 twice in 1966,"3 in 1972,94 in 1973,9' twice in 1976,96 in 1977,97 in 1978,98 and in 1979.99 In- deed, in this last case, the Court of Appeals labelled the anti-confiscation

88. See De Sena v. Board of Zoning Appeals, 379 N.E.2d 1144, 1146 (N.Y. 1978); cf. Consolidated Edison Co. v. Hoffman, 374 N.E.2d 105, 110-11 (N.Y. 1978) (granting use variance over city's aesthetic zoning ordinance where burden on community was minimal and denial would cause undue hardship). 89. See Welt v. Town of Islip, 432 N.Y.S.2d 214, 21415 (App. Div. 1980); Lemp v. Town Bd., 394 N.Y.S.2d 517, 523 (Sup. Ct. 1977); King v. Incorporated Village of Ocean Beach, 136 N.Y.S.2d 690, 691, 693 (Sup. Ct. 1954), affd, 143 N.Y.S.2d 637 (App. Div. 1955). 90. Vernon Park Realty, Inc. v. City of Mount Vernon, 121 N.E.2d 517, 519 (N.Y. 1954). 91. See id. at 518-19, 522. 92. See Scarsdale Supply Co. v. Village of Scarsdale, 170 N.E.2d 198, 199-200 (N.Y. 1960) (dictum). 93. See Mary Chess, Inc. v. City of Glen Cove, 219 N.E.2d 406, 408 (N.Y. 1966); Summers v. City of Glen Cove, 217 N.E.2d 663, 664 (N.Y. 1966). 94. See Golden v. Planning Bd., 285 N.E.2d 291, 304 (N.Y. 1972) (dictum). 95. See Williams v. Town of Oyster Bay, 295 N.E.2d 788, 790 (N.Y. 1973) (dictum). 96. See Fred F. French Investing Co. v. City of New York, 350 N.E.2d 381, 385 (N.Y. 1976); Ilasi v. City of Long Beach, 342 N.E.2d 594, 597 (N.Y. 1976) (dictum). 97. See National Merritt, Inc. v. Weist, 361 N.E.2d 1028, 1034 (N.Y. 1977) (dictum). 98. See Marcus Assocs., Inc. v. Town of Huntington, 382 N.E.2d 1323, 1324-25 (N.Y. 1978) (dictum). 99. See Megin Realty Corp. v. Baron, 387 N.E.2d 618, 619-20 (N.Y. 1979) (dictum).

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principle "black-letter law."'1° The court also indicated that, even if an ordinance was not confiscatory, it would be held invalid if it was discriminatory or filled with "irrational ad hocery."''1 Relying on these principles, lower courts struck down numerous local zoning controls, 02 especially in cases such as one where the municipality "acted in a manner inconsistent with its own established plan of development and its own convictions as to proper land use," in response to pressures "raised by 'a large group of interested citizens.""' 3 As the court in the case observed, "[h]owever meritorious a political approach, this [was] improper grounds for a zoning change.' The difficulty with all zoning, however, was that it inevitably grew to serve the interests of some portions of the state's population at the expense of others. One important group that zoning served was the children of the urban, immigrant poor whom the New Deal had championed. The Second World War and the G.I. Bill in its aftermath uplifted millions of those poor to a new middle-class status. With the help of VA and FHA mortgages and of new public policies prohibiting discrimination on ethnic and religious grounds, the new middle class spent much of its newly acquired wealth during the next quarter century

100. Id. at 619. 101. Randolph v. Town of Brookhaven, 337 N.E.2d 763, 765 (N.Y. 1975) (quoting Town of Bedford v. Village of Mount Kisco, 306 N.E.2d 155, 159 (N.Y. 1973)). 102. See Jurgens v. Town of Huntington, 384 N.Y.S.2d 870,871 (App. Div. 1976); McDonough v. Apton, 368 N.Y.S.2d 603, 609 (App. Div. 1975); Dauemheim, Inc. v. Town Bd., 345 N.Y.S.2d 645, 649 (App. Div. 1973), rev'd, 310 N.E.2d 516 (N.Y. 1974); Tarrant v. Incorporated Village of Roslyn, 197 N.Y.S.2d 317, 319-20 (App. Div.), aff'd, 171 N.E.2d 893 (N.Y. 1960); Mandalay Constr., Inc. v. Eccleston, 195 N.Y.S.2d 84, 85 (App. Div. 1959); Heram Holding Corp. v. City of Albany, 311 N.Y.S.2d 198, 203 (Sup. Ct. 1970); Flax v. City of Rome, 293 N.Y.S.2d 855, 859, 860 (Sup. Ct. 1968); Riviere v. Town of Hempstead, 242 N.Y.S.2d 770, 772-73 (Sup. Ct. 1963); Friendlyville Enters. v. Village of Amityville, 217 N.Y.S.2d 695, 697 (Sup. Ct. 1961); De Ville Homes, Inc. v. Michaelis, 201 N.Y.S.2d 129, 131 (Sup. Ct. 1960); Apton v. City of Rochester, 197 N.Y.S.2d 302, 306 (Sup. Ct. 1960); Delaware, Lackawanna & W. R.R. v. City of Fulton, 114 N.Y.S.2d 481, 486 (Sup. Ct. 1952), aff'd, 121 N.Y.S.2d 582 (App. Div. 1953); Little v. Young, 82 N.Y.S.2d 909, 914 (Sup. Ct.), aff'd, 85 N.Y.S.2d 41 (App. Div. 1948), afftd, 87 N.E.2d 74 (N.Y. 1949). Some cases have upheld ordinances which were claimed to be confiscatory or discriminatory. See Solow v. City of New York, 375 N.Y.S.2d 356, 359-60 (App. Div. 1975), aff'd, 372 N.E.2d 41 (N.Y. 1977); Koffv. Incorporated Village of Flower Hill, 286 N.Y.S.2d 636, 638 (App. Div. 1968), af'd, 269 N.E.2d 406 (N.Y. 1971); People ex rel. Smith v. Derison, 294 N.Y.S.2d 339, 344 (Long Beach City Ct. 1968); People ex rel. Hahn v. Solkoff, 280 N.Y.S.2d 455, 462-63 (Long Beach City Ct. 1967). 103. Rammar Assocs., Inc. v. Incorporated Village of Westbury, 300 N.Y.S.2d 698, 699-70 (Sup. Ct. 1969). 104. Id. at 700; accord Pleasant Valley Home Constr., Ltd. v. Van Wagner, 363 N.E.2d 1376, 1377 (N.Y. 1977).

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moving out of tenement apartments and into single-family dwellings. The move to the suburbs was on, not only outside New York City, but outside the larger upstate cities as well. The law of zoning facilitated and protected this suburban growth. Indeed, the most important function served by the law of zoning during the decades following World War II was to prevent intrusion of nonresidential uses into the state's newly developing suburban residential neighborhoods. Zoning was then seen as "a vital tool for maintaining a civilized form of existence"'0 5 and preserving "'the peace and security of dwelling districts."' 0 6 "The 'blessings of quiet seclusion' [were] held to be a permissible goal of local government,"'1 7 and for that reason judges were often prepared to enforce any "reasonable longstand- ing comprehensive plan with a basic policy to establish and maintain [the] character [of a municipality] as a village of residences."'0" As the leading case of Village of Belle Terre v. Boraas0 9 declared, the power to zone could be used to create "[a] quiet place where yards are wide, [and] people few" and "where family values, youth values,... and clean air make the area a sanctuary for people.""' It followed that "' [i]f the authorities in [a] village desire[d] to keep the village practically free from business, of course they [could] do so."""1t They could likewise refuse to allow industrial uses in residen-

105. Udell v. Haas, 235 N.E.2d 897, 900 (N.Y. 1968). 106. Westchester County Soc'y for Prevention of Cruelty to Animals v. Mengel, 54 N.E.2d 329, 331 (N.Y. 1944). 107. Aknin v. Phillips, 404 F. Supp. 1150, 1153 (S.D.N.Y. 1975) (quoting Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974)), aff'd, 538 F.2d 307 (2d Cir. 1976). 108. Gardner v. Downer, 305 N.Y.S.2d 252, 256 (Sup. Ct. 1969), aff'd, 317 N.Y.S.2d 1013 (App. Div. 1970); accordMcGowan v. Cohalan, 361 N.E.2d 1025, 1027 (N.Y. 1977); cf. Santmyers v. Town of Oyster Bay, 169 N.Y.S.2d 959, 961 (Sup. Ct. 1957) (invalidating spot zoning for business use that was not in conformity with the overall residential plan of development). But cf. Stevens v. Town of Huntington, 229 N.E.2d 591, 593-94 (N.Y. 1967) (noting that retention of town's residential character, while a legitimate concern, cannot support restriction of property to residential use when area has already lost that characteristic). 109. 416 U.S. 1 (1974). 110. Id. at 9. 111. Nehrbas v. Incorporated Village of Lloyd Harbor, 147 N.Y.S.2d 738, 742 (Sup. Ct. 1955) (quoting Village of Old Westbury v. Foster, 83 N.Y.S.2d 148, 150 (Sup. Ct. 1948)), modified, 152 N.Y.S.2d 28 (App. Div. 1956), aft'd, 140 N.E.2d 241 (N.Y. 1957); accord Dauemheim, Inc. v. Town Bd., 310 N.E.2d 516, 518-19 (N.Y. 1974); City of Yonkers v. Rentways, Inc., 109 N.E.2d 597, 598- 99 (N.Y. 1952); Shepard v. Village of Skaneateles, 89 N.E.2d 619, 621 (N.Y. 1949); City of Albany v. Lee, 428 N.Y.S.2d 758, 760 (App. Div. 1980), affd, 420 N.E.2d 974 (N.Y. 1981); Dodge Mill Land Corp. v. Town of Amherst, 402 N.Y.S.2d 670, 673 (App. Div. 1978); Hale v. City of Utica, 403 N.Y.S.2d 374, 375 (App. Div. 1978); McCabe v. Town of Oyster Bay, 217 N.Y.S.2d 163, 165 (App. Div. 1961); New York Trap Rock Corp. v. Town of Clarkstown, 149 N.Y.S.2d 290, 292-93

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oftial theirdistricts"' dwellings." or to 3allow They homeowners could also prohibitto operate the small building businesses of apart- out

(App. Div. 1956), affd, 144 N.E.2d 725 (N.Y. 1957); Reichenbach v. Windward at Southampton, 364 N.Y.S.2d 283, 286, 294-95 (Sup. Ct.), affd, 372 N.Y.S.2d 985 (App. Div. 1975); Town of N. Castle v. Windmill Farm Homes, Inc., 232 N.Y.S.2d 551, 552, 554 (Sup. Ct. 1962); Gardner v. Leboeuf, 204 N.Y.S.2d 468, 473 (Sup. Ct. 1960), affd, 226 N.Y.S.2d 678 (App. Div. 1962); Gregory v. Incorporated Village of Garden City, 186 N.Y.S.2d 178, 182, 185 (Sup. Ct. 1959); Town of Mount Pleasant v. Van Tassell, 166 N.Y.S.2d 458,461 (Sup. Ct. 1957), aff d, 177 N.Y.S.2d 1010 (App. Div. 1958); City of New York v. Jack Parker Assocs., Inc., 161 N.Y.S.2d 731, 734-35 (Sup. Ct. 1957); Servodidio v. Board of Appeals, 146 N.Y.S.2d 125, 127 (Sup. Ct. 1955); Longo v. Eilers, 93 N.Y.S.2d 517, 519 (Sup. Ct. 1949); City of New Rochelle ex rel. Dassler v. Friedman, 78 N.Y.S.2d 681, 682-83 (New Rochelle City Ct. 1947); cf Community Planning Bd. v. Board of Standards & Appeals, 350 N.Y.S.2d 138,139-40 (App. Div. 1973) (holding that residential neighbors of businesses have standing to challenge zoning variances approved by administrative authorities). Courts have held specific facts to warrant business use of land in residential areas. See Grimpel Assocs. v. Cohalan, 361 N.E.2d 1022 (N.Y. 1977); Albright v. Town of Manlius, 268 N.E.2d 785 (N.Y. 1971); Thomas v. Town of Bedford, 184 N.E.2d 285 (N.Y. 1962); Church v. Town of Islip, 168 N.E.2d 680 (N.Y. 1960); De Mott v. Notey, 143 N.E.2d 804 (N.Y. 1957); Elgar v. S.H. Kress & Co., 127 N.E.2d 325 (N.Y. 1955); Cove Pizza, Inc. v. Hirshon, 401 N.Y.S.2d 838 (App. Div. 1978); Mahoney v. O'Shea Funeral Homes, Inc., 395 N.Y.S.2d 662 (App. Div. 1977), affd, 380 N.E.2d 297 (N.Y. 1978); Tompkins County Hotel-Restaurant Ass'n v. Stevens, 211 N.Y.S.2d 930 (App. Div. 1961); Downey v. Incorporated Village of Ardsley, 158 N.Y.S.2d 306 (App. Div. 1957); Penataquit Ass'n v. Furman, 129 N.Y.S.2d 221 (App. Div. 1954); Corbett v. Zoning Bd. of Appeals, 128 N.Y.S.2d 12 (App. Div. 1954); Schneiderman v. Shenkenberg, 281 N.Y.S.2d 459 (Sup. Ct. 1967); Chusud Realty Corp. v. Village of Kensington, 243 N.Y.S.2d 149 (Sup. Ct. 1963), affd, 255 N.Y.S.2d 411 (App. Div. 1964); Town of Hempstead v. Lynne, 222 N.Y.S.2d 526 (Sup. Ct. 1961); Twenty-One White Plains Corp. v. Village of Hastings-on-Hudson, 180 N.Y.S.2d 13 (Sup. Ct. 1958), aff'd, 196 N.Y.S.2d 562 (App. Div. 1959); Linn v. Town of Hempstead, 170 N.Y.S.2d 217 (Sup. Ct. 1957); Fitchett Crescent Corp. v. City of New York, 155 N.Y.S.2d 272 (Sup. Ct. 1956); Rockdale Constr. Corp. v. Incorporated Village of Cedarhurst, 94 N.Y.S.2d 601 (Sup. Ct.), affd, 91 N.Y.S.2d 926 (App. Div. 1949); Maxwell v. Incorporated Village of Rockville Ctr., 84 N.Y.S.2d 544 (Sup. Ct. 1948); Village of Old Westbury v. Foster, 83 N.Y.S.2d 148 (Sup. Ct. 1948); cf DeSena v. Gulde, 265 N.Y.S.2d 239,245-46 (App. Div. 1965) (holding that refusal to zone property for business use must be reasonably connected to the relation of that property to neighboring property). 112. See McGowan v. Cohalan, 361 N.E.2d 1025 (N.Y. 1977); Peter Pan Playland, Inc. v. Foley, 212 N.Y.S.2d 759 (App. Div. 1961); Levine v. Town of Oyster Bay, 259 N.Y.S.2d 247 (Sup. Ct. 1964); Opgal, Inc. v. Bums, 189 N.Y.S.2d 606 (Sup. Ct. 1959), aff'd, 201 N.Y.S.2d 831 (App. Div. 1960), affd, 173 N.E.2d 50 (N.Y. 1961); cf Town of Hempstead v. Goldblatt, 172 N.E.2d 562 (N.Y.),prob.juris. noted, 366 U.S. 942 (1961), and affd, 369 U.S. 590 (1962) (upholding ordinance that regulated an existing non-conforming use, effectively excluding sand pit from residential area). For a case allowing an industrial use on its own specific facts in a residentially zoned area, see IncorporatedVillage of North Hornell v. Rauber, 40 N.Y.S.2d 938 (Sup. Ct. 1943). 113. See Carbonara v. Sacca, 358 N.Y.S.2d 82 (App. Div. 1974); Rodelli v. Bums, 187 N.Y.S.2d 301 (Sup. Ct. 1959); Schweizer v. Board of Zoning Appeals, 167 N.Y.S.2d 764 (Sup. Ct. 1957); Town of N. Hempstead v. White, 144 N.Y.S.2d 358 (Sup. Ct. 1955), affd, 148 N.Y.S.2d 461 (App. Div. 1956); Stillbar Constr. Co. v. Town of Harrison, 143 N.Y.S.2d 804 (Sup. Ct. 1955); Banister v. Board of Appeals, 65 N.Y.S.2d 15 (Sup. Ct. 1946); Village of E. Hampton v. Mulford, 65 N.Y.S.2d 455 (Sup. Ct. 1946). But cf Delpriore v. Ball, 118 N.Y.S.2d 53 (App. Div. 1953) (allowing dancing classes in residence under language of particular zoning ordinance), affd, 118

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ments in single family districts."4 However, municipalities typically could not exclude schools, it5 parks,116 or clubs" 7 from their environs.

N.E.2d 478 (N.Y. 1954). Although most zoning ordinances permitted professionals to practice out of an office in their residence, see Eisner v. Farrington, 209 N.Y.S.2d 673 (App. Div. 1961); Weinstein v. Bums, 198 N.Y.S.2d 76 (Sup. Ct. 1959), the courts would also sustain ordinances that did not allow such practice. See Cerbone v. Village of Pelham Manor, 240 N.Y.S.2d 523 (Sup. Ct. 1963), affd, 245 N.Y.S.2d 1003 (App. Div. 1963). But cf Dellwood Dairy Co. v. City of New Rochelle, 165 N.E.2d 566 (N.Y. 1960) (allowing placement of a milk vending machine in an apartment house basement despite residential zoning that prohibited business). 114. See Raynor v. Village of Rockville Ctr., 310 N.Y.S.2d 210 (Sup. Ct. 1969); Rosenzweig v. Crinnion, 139 N.Y.S.2d 172 (Sup. Ct. 1954). 115. See Stoller v. Board of Zoning & Appeals, 337 N.Y.S.2d 946 (App. Div. 1972); Union Free Sch. Dist. No. 14 v. Village of Hewlett Bay Park, 107 N.Y.S.2d 858 (App. Div. 1951); Durand v. Board of Coop. Educ. Servs., 334 N.Y.S.2d 670 (Sup. Ct. 1972), affd, 341 N.Y.S.2d 884 (App. Div. 1973); Board of Educ. v. City of Buffalo, 293 N.Y.S.2d 421 (Sup. Ct. 1968), affd, 302 N.Y.S.2d 71 (App. Div. 1969); Town of Onondaga v. Central Sch. Dist. No. 1, 287 N.Y.S.2d 581 (Sup. Ct. 1968). Many courts discussed how the state and its agencies are immune from local zoning regulations. See Floyd v. New York State Urban Dev. Corp., 300 N.E.2d 704 (N.Y. 1973); Hongisto v. Mercure, 421 N.Y.S.2d 690 (App. Div. 1979); City of Rochester v. Town of Rush, 336 N.Y.S.2d 160 (Sup. Ct. 1972); Metropolitan Transp. Auth. v. Village of Tuckahoe, 325 N.Y.S.2d 718 (Sup. Ct. 1971), aff'd, 328 N.Y.S.2d 615 (App. Div. 1972); Bamathan v. Kramer, 253 N.Y.S.2d 144 (Sup. Ct. 1964); cf Stiger v. Village of Hewlett Bay Park, 129 N.Y.S.2d 38, 40 (App. Div. 1954) (allowing exemption of municipal buildings from zoning ordinance if necessary for performance of its mandatory duties); Hewlett v. Town of Hempstead, 133 N.Y.S.2d 690, 695-96 (Sup. Ct. 1954) (same), aff'd, 150 N.Y.S.2d 922 (App. Div. 1956). Similarly, private schools could not be prohibited. See East Bayside Homeowners Ass'n v. Board of Standards & Appeals, 430 N.Y.S.2d 676 (App. Div. 1980); Imbergamo v. Barclay, 352 N.Y.S.2d 337 (Sup. Ct. 1973); Betty-June Sch., Inc. v. Young, 201 N.Y.S.2d 692 (Sup. Ct. 1960); Incorporated Village of Brookville v. Paulgene Realty Corp., 200 N.Y.S.2d 126 (Sup. Ct. 1960), aft'd, 218 N.Y.S.2d 264 (App. Div. 1961), aff'd, 180 N.E.2d 905 (N.Y. 1962); Merrick Community Nursery Sch. v. Young, 171 N.Y.S.2d 522 (Sup. Ct. 1958); Village of Sands Point v. Sands Point Country Day Sch., 148 N.Y.S.2d 312 (Sup. Ct. 1955), affid, 154 N.Y.S.2d 428 (App. Div. 1956); Property Owners Ass'n v. Board of Zoning Appeals, 123 N.Y.S.2d 716 (Sup. Ct. 1953); Long Island Univ. v. Tappan, 113 N.Y.S.2d 795 (Sup. Ct. 1952), aff'd, 118 N.Y.S.2d 767 (App. Div.), affid, 114 N.E.2d 432 (N.Y. 1953). But use of school facilities as a day camp could be prohibited, see Rorie v. Woodmere Academy, 417 N.Y.S.2d 299 (App. Div. 1979); Fremed v. Bayswater Park, Inc., 176 N.Y.S.2d 729 (Sup. Ct. 1958), as could expansion of a school beyond limits to which it had agreed when first entering a municipality. See New York Inst. of Tech., Inc. v. LeBoutillier, 305 N.E.2d 754 (N.Y. 1973); Hofstra College v. Wilmerding, 204 N.Y.S.2d 476 (Sup. Ct. 1960); People v. Zeldin, 300 N.Y.S.2d 933 (Dist. Ct. 1969); cf Great Neck Community Sch. v. Dick, 140 N.Y.S.2d 221 (Sup. Ct. 1955) (holding that a private school must apply for permit for alteration of building with nonconforming use), afid, 158 N.Y.S.2d 379 (App. Div. 1957). 116. See Incorporated Village of Lloyd Harbor v. Town of Huntington, 149 N.E.2d 851 (N.Y. 1958). Facilities, however, were subject to municipal health regulation. See Babcock v. Port Washington Little League, Inc., 144 N.Y.S.2d 179 (Sup. Ct. 1955).

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Nor could municipalities impose other sorts of regulations which discriminated against nonresidents. An early case in support of this principle was People v. Grant,"8 which involved a municipal ordinance excluding "'through or transient vehicular traffic""' 9 from designated streets in an effort to preserve the tranquillity of a residential area from 12° commuter traffic generated by the presence of a nearby factory. Without reaching any constitutional issue, the Court of Appeals ruled that New York's legislation establishing municipal governments incorporated a principle that government holds "the fee of streets for the benefit of the whole people." 1' It followed from this principle that "residents of a particular area in a town or village [did] not possess and [could not] be granted proprietary rights to the use of the highways therein, in priority to or exclusive of use by the general public."'" The court reiterated this holding in two other cases a few years after Grant,when it held that one municipality's attempt to bar transportation on its highways of garbage from other areas exceeded its power to regulate traffic2' and that another municipality's effort to maintain a park for residents of a single subdivision violated a legislatively imposed duty "to adapt park districts to the needs of growing communities."''24 The principle prohibiting municipal discrimination against outsiders was inconsistent, however, with one of the most important devices used in the 1950s and into the 1960s to protect the quality of life in expensive

117. See Suburban Club, Inc. v. Town of Huntington, 289 N.Y.S.2d 813 (Sup. Ct.), modified, 291 N.Y.S.2d 1013 (App. Div. 1968); Froelich v. Beach Point Club, Inc., 202 N.Y.S.2d 115 (Sup. Ct. 1960); Hicks Nurseries, Inc. v. Zoning Bd. of Appeals, 196 N.Y.S.2d 205 (Sup. Ct. 1959); New Morton Village Pool & Recreation Ass'n v. Town Bd., 188 N.Y.S.2d 348 (Sup. Ct. 1959); Anthony v. Liberman, 175 N.Y.S.2d 743 (Sup. Ct. 1958), aff'd, 183 N.Y.S.2d 996 (App. Div. 1959); Capri Beach Club, Inc. v. Town of Hempstead, 170 N.Y.S.2d 68 (Sup. Ct. 1957). But see Kropfv. Brooks, 233 N.Y.S.2d 62 (App. Div. 1962) (upholding denial of permit where proposed use deemed to adversely affect property values and create undue traffic hazard); 4M Club, Inc. v. Andrews, 204 N.Y.S.2d 610 (App. Div. 1960) (allowing zoning authority to deny permit on the basis of factors not expressly set forth in ordinance); Schroeder v. Kreuter, 132 N.Y.S.2d 144 (Sup. Ct.) (holding that ordinance did not allow permit for club house where such use was insubstantial compared to other proposed uses), aff'd, 135 N.Y.S.2d 637 (App. Div. 1954), aff'd, 127 N.E.2d 845 (N.Y. 1955). 118. 117N.E.2d542(N.Y. 1954). 119. Id. at 542. 120. See id.at 545. 121. Id. at 544. 122. Id. 123. See Wiggins v. Town of Somers, 149 N.E.2d 869, 871 (N.Y. 1958). 124. Atlantic Beach Property Owners' Ass'n v. Town of Hempstead, 144 N.E.2d 409,411 (N.Y. 1957).

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suburban communities. The device was large-lot zoning. Early cases, for example, upheld minimum lot sizes of one or two acres, 25 although not six acres. 26 A parallel device was the "regulation of trailer camps," which, it was said, bore "a substantial relation to public health, safety, morals and general welfare."'27 Under this rubric, municipalities were 2 able to limit mobile homes to those already in town, 1 to those only temporarily in town,129 or to only those located in mobile home parks.130 As it became clear that zoning had become a device for protecting the suburban rich against those with a conflicting interest who had been left behind in urban poverty, the Court of Appeals began to express concern. In the 1975 case of Berenson v. Town of New Castle,3' the court took aim at "'community efforts at immunization or exclusion". 32 through the device of "exclusionary zoning ordinances,' 33 holding that "in enacting a zoning ordinance, consideration must be given [by a municipality] to regional needs and requirements."' 34

125. See Levitt v. Incorporated Village of Sands Point, 160 N.E.2d 501 (N.Y. 1959); Dilliard v. Village of N. Hills, 94 N.Y.S.2d 715 (App. Div. 1950); Samuels v. Town of Harrison, 195 N.Y.S.2d 882 (Sup. Ct. 1959); Gignoux v. Village of Kings Point, 99 N.Y.S.2d 280 (Sup. Ct. 1950). But see Bismark v. Incorporated Village of Bayville, 267 N.Y.S.2d 1002 (Sup. Ct. 1966) (holding unconstitutional an ordinance increasing minimum lot size that precluded an owner of undeveloped land from realizing a reasonable return on investment); Spanier v. Town of Huntington, 188 N.Y.S.2d 381 (Sup. Ct. 1959) (same). 126. See Voeleker v. City of Glen Cove, 212 N.Y.S.2d 835 (Sup. Ct. 1961). 127. Stevens v. Smolka, 202 N.Y.S.2d 783, 785 (App. Div. 1960); accord Carpenter v. Clark, 231 N.Y.S.2d 103, 104 (Sup. Ct. 1962), rev'd on other grounds, 238 N.Y.S.2d 556 (App. Div. 1963); cf.City of Rochester v. Olcott, 16 N.Y.S.2d 256,260 (Rochester City Ct. 1939) (invalidating ordinance that required permit before using trailers as residences). 128. See Jackson & Perkins Co. v. Martin, 225 N.Y.S.2d 112, 114-15 (App. Div. 1962), rev'd on other grounds, 190 N.E.2d 422 (N.Y. 1963); Fairmeadows Mobile Village, Inc. v. Shaw, 211 N.Y.S.2d 592, 597 (Sup. Ct. 1961), rev'd on othergrounds, 226 N.Y.S.2d 565 (App. Div. 1962). But cf. Dalton v. Van Dien, 339 N.Y.S.2d 378, 384 (Sup. Ct. 1972) (declaring ordinance unenforceable because distinction between established and new trailers was not contained in zoning ordinance and led to discriminatory enforcement); Town of Gardiner v. Stanley Orchards, Inc., 432 N.Y.S.2d 335, 340 (Sup. Ct. 1980) (holding that the possibility of discriminatory enforcement invalidated ordinance); Bashant v. Walter, 355 N.Y.S.2d 39, 44 (Sup. Ct. 1974) (same). 129. See Town of Pompey v. Parker, 385 N.Y.S.2d 959, 961-62, 965 (App. Div. 1976), ajTd, 377 N.E.2d 741 (N.Y. 1978); Coming v. Town of Ontario, 121 N.Y.S.2d 288, 293 (Sup. Ct. 1953). 130. See Mobile Home Owners Protective Ass'n v. Town of Chatham, 305 N.Y.S.2d 334, 335 (App. Div. 1969); cf. Kyritsis v. Fenny, 320 N.Y.S.2d 702, 705 (Sup. Ct. 1971) (finding that modular home was not within mobile home ordinance). 131. 341 N.E.2d 236 (N.Y. 1975). 132. Id. at 241 (quoting Golden v. Planning Bd., 285 N.E.2d 291, 302 (N.Y. 1972)). 133. Id. 134. Id. at 242.

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Berenson did not lead to clearcut doctrine, however, since it held merely that in each case "courts must assess the reasonableness of what the locality ha[d] done."'35 These individualized assessments led to holdings which approved one-acre minimum lots for mobile homes136 or which allowed mobile homes only temporarily'37 or only in preexisting trailer parks.'38 Under the Berenson approach, the Court of Appeals even sustained five-acre zoning for single family residences in an exclusive Long Island suburb.'39 In short, exclusionary zoning as a device for protecting suburban residential neighborhoods remained alive 40 and well in New York throughout the 1970s. A second area in which the power of municipalities was deployed expansively to control land use within their borders, thereby maintaining a suburban lifestyle at the expense of potential newcomers, was in respect to the law of subdivision exactions. As late as 1950, it seemed clear that a municipality could not require a developer whose land met existing zoning requirements to satisfy any conditions or pay any exactions to obtain a building permit. When one suburban village, for example, sought to prohibit a developer whose land was zoned for apartments from building them until it became possible to connect up to a street sewage system, a trial judge struck the restriction down as "a condition" with which it was "impossible to comply" that "amount[ed] practically to a confiscation of petitioner's property.'' Two years later, however, in Brous v. Smith42 the Court of Appeals began

135. Id. at 243. 136. See McBride v. Town of Forestburgh, 388 N.Y.S.2d 940, 942, 943 (App. Div. 1976). 137. See Town of Pompey v. Parker, 377 N.E.2d 741 (N.Y. 1978) (mem.), aff'g 385 N.Y.S.2d 959 (App. Div. 1976). 138. See id.; Stoddard v. Town of Marilla, 400 N.Y.S.2d 637, 638 (App. Div. 1977), modified, 387 N.E.2d 621 (N.Y. 1979); Town of Lima v. Harper, 390 N.Y.S.2d 752, 755 (App. Div. 1977), affgd sub nom. Harper v. Zoning Bd. of Appeals, 375 N.E.2d 777 (N.Y. 1978). But see Janas v. Town Bd. & Zoning Bd. of Appeals, 382 N.Y.S.2d 394, 398 (App. Div. 1976) (invalidating exclusion of mobile home park construction as an impermissible classification denying equal protection). 139. See Robert E. Kurzius, Inc. v. Incorporated Village of Upper Brookville, 414 N.E.2d 680 (N.Y. 1980). 140. Federal courts generally refused to insert themselves into the issue. See Warth v. Seldin, 422 U.S. 490 (1975) (dismissing a suit seeking relief from exclusionary zoning on grounds of lack of standing); cf. Calhoun v. Town Bd., 406 N.Y.S.2d 661 (Sup. Ct. 1978) (requiring compliance with minimal due process standards in proceedings that pass upon trailer permit applications). 141. Pforzheimer v. Seidman, 99 N.Y.S.2d 87, 90 (Sup. Ct. 1950), rev'd, 103 N.Y.S.2d 886 (App. Div. 1951); see also Conmar Builders, Inc. v. Board of Appeals, 251 N.Y.S.2d 521 (Sup. Ct. 1964) (striking down condition with which owner could not comply). 142. 106 N.E.2d 503 (N.Y. 1952).

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dramatically to change doctrine to favor established suburbanites. The Brous case arose pursuant to 1932 legislation that required cities, towns, and villages to deny building permits unless a road giving access to the proposed structure was suitably improved. 4 3 In Brous, the town in question had interpreted the law to allow it to demand that developers construct roads to properties on which they wished to build at their own expense. The Court of Appeals agreed with the town's interpretation, observing that "in this era of the automobile, modem living as we know it is impossible without improved highways linking people with their jobs, their sources of food and other necessities, their children's schools and their amusements and entertainments.' 44 The court also rejected a challenge that the law, as interpreted, was unconsti- 4 tutional, in that it required a private individual to build a public road. 1 In the court's unexplained view, the requirement of building a road was no different from minimum lot size, set back, and side yard require- 46 ments.1 Following the Brous case, several lower courts upheld municipal refusals to grant building permits in cases where adequate roads or sewers were not provided. 147 A more interesting development occurred when the City of New Rochelle demanded that a developer, in addition to building roads, donate a portion of her land to the school district as a condition of approval for her planned subdivision. When a trial judge intervened after the city, following the school district's receipt of the land, refused to keep its bargain, the judge did not set aside the donation or the bargain. On the contrary, he enforced it 48 and thereby allowed municipalities to exact from developers seeking approval of building

143. See id. at 504; see also Act of April 8, 1932, ch. 634, § 280, 1932 N.Y. Laws 1460 (codified as amended at N.Y. TOwN L. § 280-a (McKinney 1987)). 144. 106 N.E.2d at 506. 145. See id. at 506-07. 146. See id. at 507. 147. See Catalfamo v. Zirk, 248 N.Y.S.2d 315, 317 (Sup. Ct.), rev'd on other grounds, 254 N.Y.S.2d 186 (App. Div. 1964); Ringewald v. Struppmann, 204 N.Y.S.2d 714,717 (Sup. Ct. 1960), rev'don other grounds, 218 N.Y.S.2d 213 (App. Div. 1961); Green Acres Bldg. Corp. v. Board of Zoning Appeals, 197 N.Y.S.2d 565, 567-68 (Sup. Ct. 1959); Bayer v. Pugsley, 176 N.Y.S.2d 848, 852 (Sup. Ct.), aff'd, 181 N.Y.S.2d 781 (App. Div. 1958); Gulino Constr. Corp. v. Hilleboe, 167 N.Y.S.2d 787, 792-93 (Sup. Ct. 1956); cf Josephs v. Town Bd., 198 N.Y.S.2d 695, 699-700 (Sup. Ct. 1960) (upholding consideration of future inadequacy of school facilities in denying permit for reduction in lot area requirements). 148. See Ward v. City of New Rochelle, 197 N.Y.S.2d 64 (Sup. Ct.), aff'd, 197 N.Y.S.2d 128 (App. Div. 1959); cf Telimar Homes, Inc. v. Miller, 218 N.Y.S.2d 175, 177 (App. Div. 1961) (holding that work on roads and water and drainage system gave developer a nonconforming use to its entire subdivision).

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plans a wide variety of donations, the cost of which the developers would, in turn, pass on to new home buyers, thereby increasing the price and exclusivity of suburban housing. Probably because municipal exactions favored only established residents, doctrine remained somewhat unsettled, as other judges refused to require developers to provide sewers149 or land for recreational purposes.15 ° This doctrinal uncertainty forced the Court of Appeals to return to the exactions question, which it did in Jenad, Inc. v. Village of Scarsdale.' Over a dissent which forcibly protested that requiring "'new people coming into the municipality [to] bear the bufden of the increased costs of their presence .....' constituted a "surrender" by judges of "their function of protecting basic property rights ...[and] basic principles of [equality of] taxation,"'15 3 a four-judge majority"s specifically upheld the legislature's "grant to villages of power to make such exactions."'5 5 Indeed, the majority went even further and declared that a municipality, instead of requiring a developer to build public facilities or allot land for community purposes, could demand "'monies in lieu of land' or construction.'56 Jenad, in short, made it clear that municipalities could impose the costs of newcomers entirely on developers and, through the developers, on the newcomers themselves. Nonetheless, the cases subsequent to Jenad were again mixed. In some, judges sustained the imposition of penalties on developers who had subdivided land without the required approval,' 57 while in others

149. See Oakwood Island Yacht Club, Inc. v. Board of Appeals, 223 N.Y.S.2d 907, 909 (Sup. Ct. 1961); cf.Stonedge Estates, Inc. v. City of New York, 262 N.Y.S.2d 558, 561 (Sup. Ct.) (holding that storm sewers were not sole responsibility of property owner and thus could not form basis for denial of permit for home construction), modified, 264 N.Y.S.2d 576 (App. Div. 1965). 150. See Gulest Assocs., Inc. v. Town of Newburgh, 209 N.Y.S.2d 729, 733, 734 (Sup. Ct. 1960), aff'd, 225 N.Y.S.2d 538 (App. Div. 1962). 151. 218 N.E.2d 673 (N.Y. 1966). 152. Id. at 677 (dissenting opinion) (quoting Daniels v. Borough of Point Pleasant, 129 A.2d 265, 267 (N.J. 1957)). 153. Id. at 678 (dissenting opinion). 154. See id. at 680. 155. Id. at 675. 156. Id. 157. See Slavin v. Ingraham, 339 N.E.2d 157 (N.Y. 1975) (dictum); cf.Delaware Midland Corp. v. Incorporated Village of Westhampton Beach, 359 N.Y.S.2d 944 (Sup. Ct. 1974) (upholding subdivision regulations in declaratory judgment action), affid, 369 N.Y.S.2d 378 (App. Div. 1975), aff'd, 355 N.E.2d 302 (N.Y. 1976); Incorporated Village ofNissequogue v. Meixsell, 287 N.Y.S.2d 555 (Sup. Ct. 1968).

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exactions were upheld.15s On the other hand, judges struck down exactions that were not applied equally to all developers,' exactions 16° that constituted too high a proportion of the total value of the land, and exactions that were insufficiently connected to costs arising from development of particular land.' 6' They also refused to impose penalties in cases where developers had reasonably relied on municipal conduct or assurances" or where municipalities had exceeded their 63 statutory powers or followed improper procedures. An important by-product of Jenademerged several years later when the Court of Appeals held in Golden v. PlanningBoard" 6 that municipalities could constitutionally impose moratoria on development for such a reasonable period of time as was required to bring municipal services up to a level needed to accommodate the development. 65 One factor

158. See Friends of the Pine Bush v. Planning Bd., 450 N.Y.S.2d 966, 969 (App. Div. 1982), rev'g 431 N.Y.S.2d 864 (Sup. Ct. 1980), afd, 452 N.E.2d 1252 (N.Y. 1983); Riegert Apartments Corp. v. Planning Bd., 432 N.Y.S.2d 43, 45 (Sup. Ct. 1979), affd, 432 N.Y.S.2d 40 (App. Div. 1980), rev'd, 441 N.E.2d 1076 (N.Y. 1982); Torsoe Bros. Constr. v. Board of Trustees, 366 N.Y.S.2d 810, 814-15 (Sup. Ct.), modified, 375 N.Y.S.2d 612 (App. Div. 1975); cf Collard v. Incorporated Village of Flower Hill, 427 N.Y.S.2d 301, 302 (App. Div. 1980) (recognizing the existence of restrictive land use covenants exacted by village in return for grant of zoning privilege), aff'd, 421 N.E.2d 818 (N.Y. 1981). 159. See Maloco Realty Corp. v. Town of Brookhaven Planning Bd., 312 N.Y.S.2d 429, 430 (App. Div. 1970). 160. See Kessler v. Town of Shelter Island Planning Bd., 338 N.Y.S.2d 778, 780 (App. Div. 1972); East Neck Estates, Ltd. v. Luchsinger, 305 N.Y.S.2d 922, 926-27 (Sup. Ct. 1969); see also Holmes v. Planning Bd., 433 N.Y.S.2d 587, 604 (App. Div. 1980) (noting that exaction must leave property "capable of a reasonable return") (dictum). 161. See Peckham Indus. v. Ross, 306 N.Y.S.2d 1006, 1010 (Sup. Ct.), affd, 312 N.Y.S.2d 627 (App. Div. 1970). 162. See Greene v. Brach, 338 N.Y.S.2d 677, 679-80 (App. Div. 1972); Incorporated Village of Northport v. Guardian Fed. Say. & Loan Ass'n, 384 N.Y.S.2d 923, 928 (Sup. Ct.), afj d, 387 N.Y.S.2d 1015 (App. Div. 1976). 163. See Williams & Eberley, Inc. v. MacLeod, 397 N.Y.S.2d 262,265 (App. Div. 1977), aff'd, 380 N.E.2d 327 (N.Y. 1978); Bush v. Town Bd., 335 N.Y.S.2d 617, 619 (Sup. Ct. 1972); see also Dexter v. Town Bd., 324 N.E.2d 870, 871 (N.Y. 1975) (invalidating condition that made zoning change personal to applicant); Rochester Historical Soc'y, Inc. v. Crowley, 217 N.Y.S.2d 619, 620 (App. Div. 1961) (invalidating oral conditions not sufficiently spelled out in writing). 164. 285 N.E.2d 291 (N.Y. 1972). 165. See id. at 304; Baycrest Manor, Inc. v. Commissioner of Envtl. Conservation Dep't, 395 N.Y.S.2d 486, 487 (App. Div. 1977); New York City Hous. Auth. v. Commissioner of Envtl. Conservation Dep't, 372 N.Y.S.2d 146, 152 (Sup. Ct. 1975); Rubin v. McAlevey, 282 N.Y.S.2d 564, 568 (Sup. Ct. 1967), aff'd, 288 N.Y.S.2d 519 (App. Div. 1968). But see Lake Illyria Corp. v. Town of Gardiner, 352 N.Y.S.2d 54, 57 (App. Div. 1974) (invalidating short-term moratoria ultimately extending over four years); Russo v. New York State Dep't of Envtl. Conservation, 391 N.Y.S.2d 11, 12 (App. Div. 1977) (same); Albrecht Realty Co. v. Town of New Castle, 167 N.Y.S.2d 843 (Sup. Ct. 1957) (invalidating ordinance limiting issuance of yearly building permits as beyond statutory grant of power).

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that helped the court uphold the eighteen-year moratorium in the Golden case was that a developer could escape the moratorium at any time it wished simply by agreeing to construct the facilities needed to support its development 66-an agreement which absent the Jenad case might have been found unconstitutionally coercive. Under the Golden rationale, however, municipalities could not unreasonably delay their provision of necessary services 67 or permanently fail to provide them if such provision was possible. 68 A municipality could permanently refuse to approve further development only if its inability to provide services was, in essence, incapable of being eliminated. 69 A third area in which the zoning power expanded in the post-World War 1[ era, largely to protect the quality of suburban life, was aesthetic zoning. By the end of the 1950s, if not earlier, the New York courts had found aesthetic considerations were "not wholly without weight" in the zoning calculus, 7' and, as a result, they had willingly enforced state and local legislation restricting signs and billboards.' 7' But they had

166. See 285 N.E.2d at 299. 167. See Charles v. Diamond, 360 N.E.2d 1295, 1301 (N.Y. 1977). 168. See Westwood Forest Estates, Inc. v. Village of S. Nyack, 244 N.E.2d 700, 702 (N.Y. 1969). 169. See Pearson Kent Corp. v. Bear, 271 N.E.2d 218, 219 (N.Y. 1971); Pacific Blvd. Assocs. v. City of Long Beach, 368 N.Y.S.2d 867, 869 (App. Div. 1975); Nattin Realty, Inc. v. Ludewig, 324 N.Y.S.2d 668,672 (Sup. Ct. 1971), affd, 334 N.Y.S.2d 483 (App. Div. 1972), aftrd,296 N.E.2d 257 (N.Y. 1973); Landing Estates, Inc. v. Jones, 324 N.Y.S.2d 255, 258 (Sup. Ct. 1971). 170. Presnell v. Leslie, 144 N.E.2d 381, 384 (N.Y. 1957) (dictum); accord Krantz v. Town of Amherst, 80 N.Y.S.2d 812, 816 (Sup. Ct. 1948); Burroughs Landscape Constr. Co. v. Town of Oyster Bay, 61 N.Y.S.2d 123, 126 (Sup. Ct. 1946); Elbert v. Village of N. Hills, 28 N.Y.S.2d 317, 318 (Sup. Ct.) (dictum), rev'd on other grounds, 28 N.Y.S.2d 172 (App. Div. 1941). 171. See Suffolk Outdoor Adver. Co. v. Hulse, 373 N.E.2d 263 (N.Y. 1977); Modjeska Sign Studios, Inc. v. Berle, 373 N.E.2d 255 (N.Y. 1977); People v. Goodman, 290 N.E.2d 139 (N.Y. 1972); Whitmier & Ferris Co. v. State, 230 N.E.2d 904 (N.Y. 1967); Cromwell v. Ferrier, 225 N.E.2d 749 (N.Y. 1967); New York State Thruway Auth. v. Ashley Motor Court, Inc., 176 N.E.2d 566 (N.Y. 1961); Philanz Oldsmobile, Inc. v. Keafing, 381 N.Y.S.2d 916 (App. Div. 1976); Rochester Poster Adver. Co. v. Town of Brighton, 374 N.Y.S.2d 510 (App. Div. 1975); Koffman v. Town of Vestal, 259 N.Y.S.2d 958 (App. Div. 1965), affd, 222 N.E.2d 733 (N.Y. 1966); Village of Larchmont v. Sutton, 217 N.Y.S.2d 929 (Sup. Ct. 1961); People v. Apostle, 214 N.Y.S.2d 101 (Rockland County Ct. 1961); People v. Diamond, 335 N.Y.S.2d 711 (Long Beach City Ct. 1972); People v. Artrol Corp., 325 N.Y.S.2d 800 (Ocean Beach J. Ct. 1971), affid sub nom. People v. Goodman, 290 N.E.2d 139 (N.Y. 1972); cf People v. Richards, 31 N.Y.S.2d 457 (Dist. Ct. 1941) (sustaining conviction for picketing in park in violation of ordinance prohibiting signs in park). For earlier cases reaching the opposite result, see Mid-State Advertising Corp. v. Bond, 8 N.E.2d 286 (N.Y. 1937) and Town ofGreenburghv. General OutdoorAdvertising Co., 109 N.Y.S.2d 826 (Sup. Ct. 1951). Regulation of signs for aesthetic reasons needs to be distinguished from earlier regulation of gasoline service station signs for the purpose of preventing fraud on customers. See People v. Arlen Serv. Stations, Inc., 31 N.E.2d 184 (N.Y. 1940); Brody v. Save Way N. Blvd., Inc., 234

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never upheld "a zoning ordinance which restrict[ed] the use of property for a purely aesthetic reason alone."' 72 They did precisely that, however, in the 1963 case of People v. Stover,173 where the Court of Appeals, in upholding an ordinance that prohibited clotheslines on front lawns, "recognize[d] that aesthetic considerations alone may warrant an exercise of the police power." 74 Although it did observe that cases could "undoubtedly arise... in which the legislative body goes too far in the name of aesthetics,"' 75 the Court of Appeals, quoting the United States Supreme Court, also found that the "'concept of public welfare [was] broad' and included "'aesthetic as well as monetary' values.176 The court quoted further, stating that it was "'within the power of the legislature to determine that ' ' the community should be beautiful as well as healthy. 27 Upholding a "general or unlimited power in government to regulate aesthetics" had the effect, as the dissenting opinion in Stover urged, of vastly increasing the breadth of the zoning power. 78 As the dissent noted, "[t]he avoidance by courts, sometimes seemingly to the point of evasion, of sustaining the constitutionality of zoning solely on aesthetic grounds ha[d] had its origin in a wholesome fear of allowing government to trespass through aesthetics on the human personality."' 179 According- ly it "seem[ed] that extensions of categories of local legislation for purely aesthetic purposes should be defined and limited, and, if they are to be enlarged, it should not be under reasoning which sets no ascertainable bounds to what can be done or attempted under this power."' 80 In the two decades following Stover, New York courts did, in fact, find themselves deeply involved in protecting aesthetic and related environmental values. In one case, for instance, in which the appellate

N.Y.S.2d 982, 983 (Sup. Ct. 1962) (dictum), rev'd, 242 N.Y.S.2d 422 (App. Div. 1963), rev'd, 198 N.E.2d 254 (N.Y. 1964). But cf. People v. Mobil Oil Corp., 409 N.Y.S.2d 329 (App. Term. 1978) (holding statute void for overbreadth when applied to nonfraudulent advertising), afjd, 397 N.E.2d 724 (N.Y. 1979); People v. Braun, 330 N.Y.S.2d 937 (Dist. Ct. 1972) (same). 172. Presnell,144 N.E.2d at 384 (dictum); accordPeople v. Sterling, 45 N.Y.S.2d 39,41 (App. Div. 1943); Hyde v. Incorporated Village of Baxter Estates, 140 N.Y.S.2d 890, 895 (Sup. Ct. 1955), aff'd, 156 N.Y.S.2d 378 (App. Div. 1956), aff'd, 145 N.E.2d 28 (N.Y. 1957). 173. 191 N.E.2d 272 (N.Y. 1963). 174. Id. at 275. 175. Id. 176. Id. (quoting Berman v. Parker, 348 U.S. 26, 33 (1954)). 177. Id. 178. Id. at 278 (dissenting opinion). 179. Id. (dissenting opinion). 180. Id. at 279 (dissenting opinion).

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division found "some evidence in the record that... projected construction [would] devastate and destroy the existing topography and have a severe impact on the environs," it modified a trial court order that had directed the issuance of a building permit and remanded to the local planning board for further consideration of the project's impact. 8' Courts also found themselves upholding legislation designed to protect aesthetic and environmental values in the Adirondack Park8 2 along with more prosaic municipal ordinances designed to prevent water pollution and erosion.'83 Other important lines of cases dealt with legislative restrictions on the filling of wetlands' 84 and legislative requirements of environmental impact statements.' s5 Courts also found

181. Loram Dev. Corp. v. Planning Bd., 384 N.Y.S.2d 865, 866 (App. Div. 1976). Other cases have dealt with environmental impact statements or their equivalent as well. See, e.g., Spears v. Berle, 397 N.E.2d 1304 (N.Y. 1979); Tyminski v. Public Serv. Comm'n, 341 N.E.2d 544 (N.Y. 1975); Ecology Action v. Van Cort, 417 N.Y.S.2d 165 (Sup. Ct. 1979); cf. SCA Chem. Waste Servs., Inc. v. Board of Appeals, 427 N.Y.S.2d 1017, 1020 (App. Div. 1980) (holding that permit could not be denied on environmental basis when Commissioner of Environmental Conservation had found no environmental impact), aff d, 419 N.E.2d 872 (N.Y. 1981). 182. See Wambat Realty Corp. v. State, 362 N.E.2d 581, 585 (N.Y. 1977); Adirondack Park Agency v. Ton-Da-Lay Assocs., 401 N.Y.S.2d 903, 905 (App. Div. 1978); McCormick v. Lawrence, 387 N.Y.S.2d 919, 920 (App. Div. 1976); Grinspan v. Adirondack Park Agency, 434 N.Y.S.2d 90, 91-92 (Sup. Ct. 1980); Helms v. Reid, 394 N.Y.S.2d 987, 1005 (Sup. Ct. 1977); Saggolf Corp. v. Lawrence, 367 N.Y.S.2d 683, 685 (Sup. Ct. 1975); Helms v. Diamond, 349 N.Y.S.2d 917, 924 (Sup. Ct. 1973); Horizon Adirondack Corp. v. State, 388 N.Y.S.2d 235, 243 (Ct. Cl. 1976). 183. See Salamar Builders Corp. v. Tuttle, 275 N.E.2d 585, 589 (N.Y. 1971); Dur-Bar Realty Co. v. City of Utica, 394 N.Y.S.2d 913, 918 (App. Div. 1977), affd, 380 N.E.2d 328 (N.Y. 1978). 184. See Biggica v. State Dep't of Envtl. Conservation, 416 N.Y.S.2d 70 (App. Div. 1979); Marine Equities Corp. v. Biggane, 373 N.Y.S.2d 622, 623 (App. Div. 1975); New York State Water Resources Comm'n v. Liberman, 326 N.Y.S.2d 284, 288 (App. Div. 1971); State v. Reed, 359 N.Y.S.2d 185, 187-88 (Sup. Ct. 1974); cf. People v. Ludlow, 348 N.Y.S.2d 20, 21 (App. Term. 1972) (upholding requirement of antipollution devices on boats); Prospect Enters. v. People, 351 N.Y.S.2d 998, 1000-01 (Sup. Ct.) (upholding limitations on use and alteration of stream), aff d, 363 N.Y.S.2d 320 (App. Div. 1974); In re Johnson Orchards & Farms, Inc., 334 N.Y.S.2d 267,269 (Sup. Ct. 1972) (allowing administrative prosecution for polluting stream). Some cases held, however, that particular properties were improperly subjected to environmental regulations. See State v. Lang, 383 N.Y.S.2d 400, 401 (App. Div. 1976); Harbor Farms, Inc. v. Nassau County Planning Comm'n, 334 N.Y.S.2d 412,415 (App. Div. 1972); Miracle Mile Assocs. v. Department of Envtl. Conservation, 414 N.Y.S.2d 277,282 (Sup. Ct. 1979); see also People v. Port of N.Y. Auth., 315 N.Y.S.2d 9, 11 (Sup. Ct. 1970) (refusing to enjoin the Port Authority from discharging fuel into Jamaica Bay from Kennedy Airport, since the issuance of an injunction would have required closure of the airport). Other cases have invalidated environmental regulations on procedural grounds. See Schiferle v. Friedman, 397 N.Y.S.2d 345 (Sup. Ct. 1977); People v. Cudak, 358 N.Y.S.2d 909 (Dist. Ct. 1974); People v. Bondi, 429 N.Y.S.2d 146 (Webster Town Ct. 1980); People v. Paddock, 288 N.Y.S.2d 96 (Ct. Spec. Sess. 1968). 185. See Biderman v. Morton, 497 F.2d 1141, 1146-47 (2d Cir. 1974); de Rham v. Diamond, 295 N.E.2d 763, 768 (N.Y. 1973); Town of Henrietta v. Department of Envtl. Conservation, 430

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themselves dealing with other aesthetic issues such as the height of 8 6 fences. The courts finally moved in two other directions on the subject of aesthetic zoning. First, they refused to hold unconstitutional a local ordinance creating a board of architectural review. 87 Even more important was their upholding of historic preservation legislation.'88 Indeed, the Court of Appeals went so far as to uphold the application of historic preservation legislation to churches,8 9 which until the 1970s had enjoyed virtual immunity from police power regulation. 9 Taken together, the zoning cases point toward two conclusions. The first is that municipal legislative bodies frequently acted to advance the interests of the people who controlled them. The second conclusion is that New York's judges generally acquiesced in such legislative action. But occasionally, in dissent and even in majority opinions, the judges protested.

B. Long-Term Protection of Tenants' Rights Another body of postwar doctrine growing out of earlier legislation protective of the housing needs of the poor was landlord-tenant law. The

N.Y.S.2d 440, 445-46 (App. Div. 1980); H.O.M.E.S. v. New York State Urban Dev. Corp., 418 N.Y.S.2d 827, 831-32 (App. Div. 1979); Onondaga Landfill Sys., Inc. v. Flacke, 431 N.Y.S.2d 235, 237 (Sup. Ct. 1980), rev'd on other grounds, 440 N.Y.S.2d 788 (App. Div. 1981); Center Square Ass'n v. Coming, 430 N.Y.S.2d 953, 957-58 (Sup. Ct. 1980); Marino v. Platt, 428 N.Y.S.2d 433, 435 (Sup. Ct. 1980); New York State Builders Ass'n v. State, 414 N.Y.S.2d 956, 959 (Sup. Ct. 1979); Kessler v. Hudson River Valley Comm'n, 346 N.Y.S.2d 409, 412 (Sup. Ct. 1973); cf. Palladio, Inc. v. Diamond, 321 F. Supp. 630 (S.D.N.Y. 1970) (upholding state prohibition on importation of wild animal products from specified endangered species), affd, 440 F.2d 1319 (2d Cir. 1971); A.E. Nettleton Co. v. Diamond, 264 N.E.2d 118 (N.Y. 1970) (same). 186. See Incorporated Village of Westbury v. Samuels, 260 N.Y.S.2d 369 (Sup. Ct. 1965); People v. Berlin, 307 N.Y.S.2d 96 (Dist. Ct. 1970). 187. See Old Farm Rd., Inc. v. Town of New Castle, 259 N.E.2d 920 (N.Y. 1970). 188. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 138 (1978); Wilson v. Okoniewski, 355 N.Y.S.2d 691, 692 (App. Div. 1974); Manhattan Club v. Landmarks Preservation Comm'n, 273 N.Y.S.2d 848, 851 (Sup. Ct. 1966); cf. Wolk v. Reisem, 413 N.Y.S.2d 60, 61 (App. Div. 1979) (holding that a historic building may be tom down if it poses a threat to health and safety); Zartman v. Reisem, 399 N.Y.S.2d 506, 509 (App. Div. 1977) (holding that preservation board may allow improvements in historic properties that are consistent with purpose of preservation ordinance). 189. See Society for Ethical Culture v. Spatt, 415 N.E.2d 922, 924 (N.Y. 1980); Lutheran Church in Am. v. City of New York, 316 N.E.2d 305, 307 (N.Y. 1974); see also Trustees of Sailors' Snug Harbor v. Platt, 288 N.Y.S.2d 314, 316 (App. Div. 1968) (stating that regulation preserving charitable property is void if it "seriously interferes with carrying out the charitable purpose"). 190. See William E. Nelson, The Changing Meaning of Equality in Twentieth-Century ConstitutionalLaw, 52 WASH. & LEE L. REv. 3, 42-49 (1995).

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postwar legal system continued, for example, to protect the well-being of tenants at the expense of landlords by stringent enforcement of housing codes that ensured minimum health and safety conditions in multiple dwellings. Many of the cases involved enforcement of ordinary code standards, such as those requiring proper documentation for use of a building,"'1 those requiring safety devices, 92 and those setting plumbing standards. 93 Others raised issues about landlords' criminal' 94 or civil liability for breaching the standards. 95 Another line of authority dealt with conversion of rental units into cooperatives and condominiums.' More extreme were cases prohibiting the eviction of tenants who had complained to housing authorities about code violations,197 or sustaining legislation which permitted tenants to pay rents to a court-appointed administrator, 9 8 or allowed a municipality to

191. See People v. Chodorov, 188 N.E.2d 124, 125 (N.Y. 1962); Seinfeld v. Murdock, 148 N.Y.S.2d 359, 363-64 (Sup. Ct. 1955); Edwards v. Murdock, 22 N.Y.S.2d 772,773 (Sup. Ct. 1940), aff'd, 26 N.Y.S.2d 311 (App. Div. 1941); cf. Parmer Realty Corp. v. Bercowitz, 180 N.Y.S.2d 987, 990 (N.Y. City Mun. Ct. 1958) (holding that ordinance limiting the use of basement apartments to building superintendent was unconstitutional). But see People v. Spitz, 356 N.Y.S.2d 480,480 (App. Term. 1973) (finding the requirement of new certificate of occupancy before each new rental of apartment unconstitutional); Pashcow v. Town of Babylon, 410 N.Y.S.2d 192, 194 (Sup. Ct. 1976) (holding that application of different regulatory schemes to different parts of municipality unconstitutional); Sokolov v. Incorporated Village of Freeport, 372 N.Y.S.2d 304, 307 (Sup. Ct. 1975) (finding ordinance imposing criminal fines unconstitutionally vague); People v. Whitted, 124 N.Y.S.2d 189, 191, 194 (Magis. Ct. 1953) (holding that orphaned children were not boarders and thus not violative of certificate of occupancy requirements). 192. See 303 W. 42nd St. Corp. v. Klein, 389 N.E.2d 815, 817 (N.Y. 1979) (dictum) (sprinklers); People v. Chopak, 173 N.E.2d 769, 770 (N.Y. 1961) (dictum) (minimum temperature); Bryant Westchester Realty Corp. v. Board of Health, 397 N.Y.S.2d 322, 324 (Sup. Ct. 1977) (window guards); Sorbonne Apartments Co. v. Board of Health, 390 N.Y.S.2d 358, 359 (Sup. Ct. 1976) (window guards); People v. Halpern, 304 N.Y.S.2d 183, 185 (Long Beach City Ct. 1969) (dictum) (sprinklers and means of egress). 193. See Association of Employing Plumbing Contractors, Inc. v. Gaynor, 369 N.Y.S.2d 787, 789 (App. Div. 1975); Dente v. City of Mount Vernon, 272 N.Y.S.2d 65, 68 (Sup. Ct. 1966); see also People v. Veil, 146 N.Y.S.2d 416, 419 (App. Div. 1955) (maintenance of appliances); Ben-Su- Si Realty Corp. v. Wagner, 72 N.Y.S.2d 765, 766 (Sup. Ct. 1947) (painting of walls and ceilings). 194. See People v. Walker, 271 N.Y.S.2d 447 (App. Term. 1966); People v. Fogel, 92N.Y.S.2d 849 (Ct. Spec. Sess. 1949). 195. See Ellis v. DiChiara, 328 N.Y.S.2d 36 (App. Div. 1972); Gerber v. Seaich Realty Co., 20 N.Y.S.2d 263 (App. Div. 1940). Federal rent control preempted enforcement of housing codes, see People ex rel. Waldron v. Broadway-Sheridan Arms, Inc., 90 N.Y.S.2d 445, 446, 449 (App. Div.), aff'd, 89 N.E.2d 522 (N.Y. 1949); cf. Realty Revenue Corp. v. Wilson, 44 N.Y.S.2d 234,235 (Sup. Ct. 1943) (holding that federal wartime regulation preempted housing codes), but later state-imposed rent control did not. See Walter v. City of New York, 83 N.Y.S.2d 859, 860-61 (Sup. Ct. 1948). 196. See, e.g., Kovarsky v. Housing & Dev. Admin., 286 N.E.2d 882 (N.Y. 1972). 197. See, e.g., Hosey v. Club Van Cortlandt, 299 F. Supp. 501, 508 (S.D.N.Y. 1969). 198. See Mercer v. 944 Marcy Ave. Holding Corp., 399 N.Y.S.2d 586 (Civ. Ct. 1977); Torres v. Ragonesi, 370 N.Y.S.2d 779 (Civ. Ct. 1975); Pack v. Loremady Realty Corp., 318 N.Y.S.2d 860

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petition for the appointment of a receiver of rents when landlords failed to maintain premises properly.'99 Even more extreme were the cases allowing municipal officials, without compensation, to dispossess tenants and, if necessary, demolish unsafe -buildings."0 A final way in which government became involved in landlord-tenant law-in the long run, in conflict with the interests of tenants-was by virtue of its construction and maintenance of public housing for low income tenants.20'

(Civ. Ct. 1971); Himmel v. Chase Manhattan Bank, 262 N.Y.S.2d 515 (Civ. Ct. 1965); Smith v. Surrey Hous. Dev. Fund Co., 386 N.Y.S.2d 182 (Rockland County Ct. 1976); cf. Farrell v. Drew, 227 N.E.2d 824 (N.Y. 1967) (upholding statute authorizing rent abatement by welfare tenants); Ten W. 28th St. Realty Corp. v. Moerdler, 275 N.Y.S.2d 144 (Sup. Ct. 1966) (holding that housing commissioner was authorized to promulgate "rent impairing" violations); Kipsborough Realty Corp. v. Goldbetter, 367 N.Y.S.2d 916 (Civ. Ct. 1975) (allowing tenant to set off rent against damages to personal goods); Milchman v. Rivera, 240 N.Y.S.2d 859 (Civ. Ct. 1963) (upholding statute allowing rent abatement by public welfare officials); Schaeffer v. Montes, 233 N.Y.S.2d 444 (Civ. Ct. 1962) (upholding rent abatement even though violation existed in the building and not in the tenant's housing accommodations themselves). 199. See 300 W. 154th St. Realty Co. v. Department of Bldgs., 260 N.E.2d 534 (N.Y. 1970); In re Department of Bldgs., 200 N.E.2d 432 (N.Y. 1964); Housing & Dev. Admin. v. Johan Realty Co., 403 N.Y.S.2d 835 (App. Term. 1978); Bozart Realty Corp. v. City of New York, 316 N.Y.S.2d 709 (Sup. Ct. 1970); In re Block 771, Lot 28, 260 N.Y.S.2d 358 (Sup. Ct. 1965); In re 1531 Brook Ave., 236 N.Y.S.2d 833 (Sup. Ct. 1962); In re 714 E. 9th St., 233 N.Y.S.2d 636 (Sup. Ct. 1962). 200. See Seven S. Main St., Inc. v. Seaboyer, 395 N.Y.S.2d 257,259 (App. Div. 1977); Rubin v. Hevro Realty Corp., 376 N.Y.S.2d 834, 837 (Sup. Ct. 1975), affd, 389 N.Y.S.2d 1021 (App. Div. 1976); City of New York v. 344 E. l10th St., 354 N.Y.S.2d 278, 280 (Sup. Ct. 1973); Russo v. Erlwein, 279 N.Y.S.2d 464,466 (Sup. Ct. 1967) (dictum); In re Bidias, 143 N.Y.S.2d 346,348 (Sup. Ct. 1955); Paderefsky v. Scala, 129 N.Y.S.2d 661,666 (Sup. Ct. 1954); Shedrick v. Board of Health, 121 N.Y.S.2d 83, 85 (Sup. Ct. 1953); Ardis v. Gilroy, 118 N.Y.S.2d 824, 825 (Sup. Ct. 1953); Henderson v. Gillroy, 115 N.Y.S.2d 674, 678 (Sup. Ct. 1952); City of New York v. 191 E. Houston St., 86 N.Y.S.2d 113, 115 (Sup. Ct. 1948); Thornton v. Chase, 23 N.Y.S.2d 735, 738 (Sup. Ct. 1940). But see Ozone Holding Corp. v. City of New York, 361 N.Y.S.2d 558, 567 (Sup. Ct. 1974) (holding that compensation was required if building was demolished in absence of emergency); Realty Revenue Corp. v. Wilson, 50 N.Y.S.2d 941, 944 (Sup. Ct. 1944) (excusing landlord's failure to comply with state code regulations because preempted by federal rationing regulations that prevented landlord from making repairs). 201. For cases upholding the constitutionality of various aspects of public housing, see Chelcy v. Buffalo MunicipalHousing Authority, 206 N.Y.S.2d 158 (Sup. Ct. 1960); Tropp v. Knickerbocker Village, Inc., 122 N.Y.S.2d 350 (Sup. Ct. 1953), affd, 135 N.Y.S.2d 618 (App. Div. 1954); Borek v. Golder, 74 N.Y.S.2d 675 (Sup. Ct. 1947); and Davidson v. City of Elmira, 44 N.Y.S.2d 302 (Sup. Ct.), aff'd, 46 N.Y.S.2d 655 (App. Div. 1943). Officials who administered public housing were, of course, required to abide by constitutional standards in doing so. See Burr v. New Rochelle Mun. Hous. Auth., 479 F.2d 1165, 1169 (2dCir. 1973); Male v. Crossroads Assocs., 469 F.2d 616,622 (2d Cir. 1972); Escalera v. New York City Hous. Auth., 425 F.2d 853, 861 (2d Cir. 1970); Holmes v. New York City Hous. Auth., 398 F.2d 262, 265 (2d Cir. 1968); Battle v. Municipal Hous. Auth., 53 F.R.D. 423, 427 (S.D.N.Y. 1971); Colon v. Tompkins SquareNeighbors, Inc., 294 F. Supp. 134, 138 (S.D.N.Y. 1968); Sumpter v. white Plains Hous. Auth., 278 N.E.2d 892, 894 (N.Y. 1972); Williams v. white Plains Hous. Auth., 317 N.Y.S.2d 935, 936 (App. Div. 1970); Bonner v. Park Lake Hous. Dev. Fund Corp., 333

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The most important development in landlord-tenant law after World War II, however, was the substitution of state for federal rent control on May 1, 1950.202 The substitution legislation, which was initially applicable both to New York City and to the remainder of the state was held constitutional "[e]ven though it may ...compel an owner to operate his real property at a loss," because it had been "enacted to meet a passing emergency."20 3 Over time, though, rent control came to be limited solely to New York City, and as limited, it came to be a permanent feature of the state's legal system, which frequently provided protection against the vagaries of the marketplace to many of the poorest inhabitants of the state, although occasionally to the rich as well. Throughout its various incarnations, rent control was routinely held constitutional in its entirety.2°4 As the Court of Appeals noted as late

N.Y.S.2d 277, 278-79 (Sup. Ct. 1972). Nonetheless, judges typically acted quite deferentially toward those administering public housing programs. See Feliciano v. Romney, 363 F. Supp. 656 (S.D.N.Y. 1973); Fletcher v. Romney, 323 F. Supp. 189 (S.D.N.Y. 1971). 202. See Act of March 29, 1950, ch. 250, 1950 N.Y. Laws 764, 782; see also Act of January 10, 1950, ch. 1, 1950 N.Y. Laws 1 (validating New York City rent control laws). 203. Teeval Co. v. Stem, 93 N.E.2d 884, 890 (N.Y. 1950); cf.United Mut. Life Ins. Co. v. Davenport, 546 F.2d 528, 530 (2d Cir. 1977) (refusing to consider claim of unconstitutionality of rent control in a mortgage foreclosure proceeding). 204. See Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969) (by implication); Davenport v. Berman, 420 F.2d 294 (2d Cir. 1969); Keeler v. Joy, 489 F. Supp. 568 (E.D.N.Y. 1980), aJ/d, 641 F.2d 1044 (2d Cir. 1981); Israel v. City Rent & Rehab. Adrnin., 285 F. Supp. 908 (S.D.N.Y. 1968); Tenants' Union of W. Side, Inc. v. Beame, 351 N.E.2d 731 (N.Y. 1976); 241 E. 22nd St. Corp. v. City Rent Agency, 305 N.E.2d 760 (N.Y. 1973); Parrino v. Lindsay, 272 N.E.2d 67 (N.Y. 1971); Felner v. Office of Rent Control, 262 N.E.2d 217 (N.Y. 1970); 8200 Realty Corp. v. Lindsay, 261 N.E.2d 647 (N.Y. 1970); Hartley Holding Corp. v. Gabel, 196 N.E.2d 537 (N.Y. 1963); I.L.F.Y. Co. v. City Rent & Rehab. Admin., 184 N.E.2d 575 (N.Y. 1962); I.L.F.Y. Co. v. Temporary State Hous. Rent Comm'n, 176 N.E.2d 822 (N.Y. 1961); Hotel Ass'n v. Weaver, 144 N.E.2d 14 (N.Y. 1957); Teeval Co. v. McGoldrick, 110 N.E.2d 900 (N.Y. 1953); Van Cortland Assocs. v. Gabel, 249 N.Y.S.2d 731, 734 (App. Div. 1964); Froehlich v. Norton, 105 N.Y.S.2d 157 (App. Div. 1951); Housing & Dev. Admin. v. Community Hous. Improvement Program, Inc., 396 N.Y.S.2d 125 (App. Term.), affd, 398 N.Y.S.2d 997 (App. Div. 1977); Coalition Against Rent Increase Passalongs v. Rent Guidelines Bd., 427 N.Y.S.2d 660 (Sup. Ct. 1979); Colosi v. Starr, 381 N.Y.S.2d 389 (Sup. Ct. 1976); Amsterdam-Manhattan, Inc. v. City Rent & Rehab. Admin., 252 N.Y.S.2d 758 (Sup. Ct.), af'd,252 N.Y.S.2d 395 (App. Div. 1964), aff'd, 207 N.E.2d 616 (N.Y. 1965); Max J. Posner Serv., Inc. v. Gabel, 240 N.Y.S.2d 371 (Sup. Ct. 1963); Hudson Land Corp. v. Temporary State Hous. Rent Comm'n, 236 N.Y.S.2d 544 (Sup. Ct. 1962), aft'd, 240 N.Y.S.2d 151 (App. Div. 1963), affd, 198 N.E.2d 267 (N.Y. 1964); Rublick v. Weaver, 170 N.Y.S.2d 61 (Sup. Ct. 1957), aff'd, 152 N.E.2d 523 (N.Y. 1958); In re Ebbitt, 145 N.Y.S.2d 131 (Sup. Ct. 1955); Pittsv. McGoldrick, 103 N.Y.S.2d 875, 879 (Sup. Ct. 1951); Dekrone v. Bussitil, 102 N.Y.S.2d 291 (Sup. Ct. 1950); Suppus v. Bradley, 101 N.Y.S.2d 557 (Sup. Ct. 1950), affd, 105 N.Y.S.2d 48 (App. Div. 1951); Reiner-Kaiser Assocs. v. McConnachie, 429 N.Y.S.2d 343 (Civ. Ct. 1979); Lincoln Bldg. Assocs. v. Jame, 196 N.Y.S.2d 241 (N.Y. City Mun. Ct. 1960), aff'd, 168 N.E.2d 528 (N.Y. 1960); Lincoln Building Assocs. v. Barr, 149 N.Y.S.2d 460 (N.Y. City Mun. Ct.), aff'd, 135 N.E.2d 801 (N.Y. 1956). But cf.Housing

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as 1962, the state still faced a danger of "mass rent increases. 2 °5 The danger made "protection of the public against such increases in a time of a rental housing shortage ... a valid legislative purpose, ' even if "in carrying out the scheme devised by the Legislature, a particular landlord or tenant may suffer.""0 7 But, as rent control became permanent, courts began to face some extremely complex battles between various groups having interests in rent-controlled housing. One set of questions arose as judges reviewed administrative decisions fixing rents.0 8 Even more complicated were the cases limiting the power of landlords to evict tenants who remained in possession of apartments under rent control after the expiration of their original lease.20 9 Over time, this statutory right to remain in possession

and Dev. Admin. v. Community Hous. Improvement Program, Inc., 374 N.Y.S.2d 520, 528 (Civ. Ct. 1975) (noting that administrative applications to remedy shortfalls between cost of maintenance and rent proceeds created due process violations rendering application of rent control laws unconstitutional). Although federal law could preempt state rent control law in cases of low and moderate income housing, the construction of which was financed by a federally guaranteed mortgage, see Snyder v. Axelrod Management Co., 471 F. Supp. 308, 312 (S.D.N.Y. 1979); Argo v. Hills, 425 F. Supp. 151, 154 (E.D.N.Y. 1977), aff'd, 578 F.2d 1366 (2d Cir. 1978); Hudsonview Terrace, Inc. v. Maury, 419 N.Y.S.2d 409, 409 (App. Term. 1979), many cases held that the Federal Department of Housing and Urban Development and its predecessors had not taken the necessary procedural steps to bring about preemption. See Gramercy Spire Tenants' Ass'n v. Harris, 446 F. Supp. 814, 826 (S.D.N.Y. 1977); Stoneridge Apts., Co. v. Lindsay, 303 F. Supp. 677, 679 (S.D.N.Y. 1969); Northridge Coop. Section No. 1, Inc. v. 32nd Ave. Constr. Corp., 141 N.E.2d 802, 809 (N.Y. 1957). 205. Bucho Holding Co. v. Temporary State Hous. Rent Comm'n, 184 N.E.2d 569, 572 (N.Y. 1962). 206. Id. at 572. 207. Id. at 573. 208. See Berry Estates, Inc. v. Marrero, 426 N.Y.S.2d 47 (App. Div. 1980); 304 W. 89th St. Realty Corp. v. Joy, 421 N.Y.S.2d 71 (App. Div. 1979); Windsor Park Tenants' Ass'n v. New York City Conciliation & Appeals Bd., 397 N.Y.S.2d 828 (App. Div. 1977); Four Maple Drive Realty Corp. v. Abrams, 153 N.Y.S.2d 747 (App. Div. 1956); Rent Stabilization Ass'n v. Rent Guidelines Bd., 413 N.Y.S.2d 950 (Sup. Ct. 1978); Diamond v. State Rent Comm'n, 198 N.Y.S.2d 735 (Sup. Ct. 1960); Teicher v. Chatsworth Stations, Inc., 134 N.Y.S.2d 541 (Sup. Ct. 1954), aff'd, 141 N.Y.S.2d 509 (App. Div. 1955); see also Samson Management Corp. v. Reichman, 309 N.Y.S.2d 838 (Sup. Ct. 1970) (holding that landlord cannot be compelled to rewire electric lines); Clason Management Corp. v. Temporary State Hous. Rent Comm'n, 217 N.Y.S.2d 287 (Sup. Ct. 1961) (holding ground rents not subject to rent control). 209. See Jaffe v. McGoldrick, 137 N.Y.S.2d 519 (App. Div. 1955); Hoenig v. McGoldrick, 117 N.Y.S.2d 535 (App. Div. 1952); Mayfair-York Corp. v. Weaver, 178 N.Y.S.2d 254 (Sup. Ct. 1958), affid, 191 N.Y.S.2d 134 (App. Div. 1959); Sparks v. Weaver, 177 N.Y.S.2d 910 (Sup. Ct. 1958); In re New York Univ., 129 N.Y.S.2d 77 (Sup. Ct. 1954); Hogan v. McGoldrick, 108 N.Y.S.2d 669 (Sup. Ct. 1951); Sandflow Realty Corp. v. Diaz, 315 N.Y.S.2d 487 (Civ. Ct. 1970), affd, 322 N.Y.S.2d 881 (App. Div. 1971); Fifty Cent. Park W. Corp. v. Bastien, 302 N.Y.S.2d 267 (Civ. Ct. 1969), affd, 316 N.Y.S.2d 503 (Sup. Ct. 1970); Stewart v. Strauss, 177 N.Y.S.2d 863 (N.Y. City Mun. Ct. 1958); Triboro Parking, Inc. v. Blomeier, 118 N.Y.S.2d 831 (N.Y. City Mun. Ct. 1953);

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became transformed into a sort of quasi-inheritable estate through a byzantine process that none of those who had worked to establish rent control could have possibly foreseen. Rent control was, after all, initially instituted as a temporary emergency measure, and landlords were deprived of the power to evict tenants only as part of a compromise that allowed them to increase rent when a new tenant entered into possession but prohibited them from evicting an existing tenant to obtain a new one. The question of how to deal with survivors of tenants who died while in possession of a rent- controlled apartment was not important either to the establishment of temporary emergency controls or to the compromise from which the eviction prohibitions sprang. However, as rent control became permanent, tenants did begin to die with some frequency, and the question of how to deal with those who lived with them had to be answered. Long before the 1980s it had been answered with a provision that upon the death of a rent-control tenant, the landlord could not dispossess "either the surviving spouse of the deceased tenant or some other member of the 210 deceased tenant's family who ha[d] been living with the tenant. This restriction did not seriously limit a landlord's ability to regain possession of premises after death, however, because landlords were assumed to have power to restrict those who, except for spouses and minor children, could occupy an apartment with a tenant. By evicting those who were not signatories of leases, landlords could ensure that a tenancy would end at a time no later than the death of the signatory and his or her spouse and the attainment of maturity by their children. The landlord's freedom to evict nonspouses was first challenged in Hudson View Properties v. Weiss. 211 As of 1980, the tenant in the Weiss case had been living in the same apartment building for forty-six years, for much of the time with her husband. In 1976, her husband had moved out, apparently as part of a divorce proceeding, and then, at the end of 1979, "a man with whom tenant 'ha[d] a close and loving 212 relationship began sharing the apartment.' The landlord promptly ordered him to leave, and when he did not, began eviction proceedings on the ground that his presence constituted a violation of the terms of the lease. The tenant defended on the ground

cf. Felin Assocs., Inc. v. Altman, 342 N.Y.S.2d 752 (App. Div. 1973) (concerning harassment of tenants by landlord), affd, 316 N.E.2d 718 (N.Y. 1974). 210. 9 NYCRR § 2204.6(d) (1991). 211. 431 N.Y.S.2d 632 (Civ. Ct. 1980). 212. Id. at 634.

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that expulsion of the tenant and/or her lover would constitute discrimination on the basis of marital status in violation of New York's Human Rights Law. The trial judge accepted this defense, but the appellate term reversed. 3 The appellate division then reversed the appellate term and 214 restored the trial court's judgment. In this posture the case arrived before the Court of Appeals, which reversed yet again and reinstated the judgment of the appellate term with the following brief explanation: In this case, the issue arises not because the tenant is unmarried, but because the lease restricts occupancy of her apartment ... to the tenant and the tenant's immediate family. Tenant admits that an individual not part of her immediate family currently occupies the apartment as his primary residence. Whether or not he could by marriage or otherwise become a part of her immediate family is not an issue. The landlord reserved the right by virtue of the covenant in the lease to restrict the occupants and the tenant agreed to this restriction.215 On this basis, the court had no difficulty concluding that the tenant's lover was not a member of her family and thus that the landlord could exclude the lover from residing in the apartment while the tenant was alive and from having any potential claim to continued residence after the tenant died. Affirming the right of landlords to evict live-in lovers had the potential to send thousands of New Yorkers into the housing market, however, and vociferous protests were heard all the way to Albany. The legislature responded with a special-interest law declaring it "unlawful for a landlord to restrict occupancy of residential premises, by express lease terms or otherwise, to a tenant ... and immediate family;" at least one other occupant and the dependent children of that occupant had to be allowed." 6 Although the statute explicitly refused to grant mere occupants possessory rights greater in extent than those of a tenant, it protected whatever rights occupants had already acquired. It thereby created the possibility that a live-in lover could claim a right to remain in an apartment after the tenant's death, and by taking on a new lover, extend that possibility ad infinitum.

213. See Hudson View Properties v. Weiss, 442 N.Y.S.2d 367 (App. Term. 1981). 214. See Hudson View Properties v. Weiss, 448 N.Y.S.2d 649 (App. Div. 1982). 215. Hudson View Properties v. Weiss, 450 N.E.2d 234, 235 (N.Y. 1983). 216. Act of June 30, 1983, ch. 403, § 39, 1983 N.Y. Laws 1777, 1800-01 (codified as amended at N.Y. REAL PROP. LAW § 235-f (McKinney 1989)).

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This possibility came to fruition in Braschi v. Stahl Associates Co.,2 7 where a gay life partner of a man who had died of AIDS brought a declaratory judgment action to enforce a claimed right to remain in the apartment after the tenant's death, on the ground that he was a member of the tenant's "family."218 While the Court of Appeals might have adhered to the implicit definition of a family pursuant to Hudson View Properties as consisting only of a spouse and blood relatives, the legislative response to that case had made the court more responsive to the realities of New York City's dominant social and political interests. Accordingly, it decided that the "intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life, 219 which the court found broad enough to comprehend "two adult lifetime partners whose relationship [was] long term and characterized by an emotional and financial commitment and interdepen- dence." 0 The plaintiff gay life partner was thereby allowed, in effect, to inherit for his own life the tenant's rent-control estate. Through the mechanism of rent control, in short, the police power transformed residential rental markets in New York City. By the 1980s, tenants possessed a quasi-inheritable right to occupy rent-controlled apartments at fixed rentals subject only to minor cost-of-living adjustments granted by the city's rent control authorities. In significant ways, the legislature and the courts would thereafter be required to compromise and adjust conflicts between what had become, in effect, competing property owners.

C. Labor Law In the field of labor law, judges similarly found themselves in the position of arbitrating among competing interests rather than acting, as they had before World War I, to promote the common good against special interests. The most important development in labor law in postwar New York was the emergence of a distinct body of state-created doctrine regulating collective labor activities by public employees. Some of these state-law rules paralleled general labor law doctrines formulated under the National Labor Relations Act. Doctrine developed,

217. 543 N.E2d 49 (N.Y. 1989). 218. Id. at 51. 219. Id. at 53. 220. Id. at 54.

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for example, on such issues as the determination of whether a particular union was the appropriate bargaining agent for a group of workers22' or whether a particular individual or class of individuals belonged in a union, 22223and the deduction of dues from employee paychecks. z Other cases dealt with allegations of unfair labor practices by government bodies 4 and grievances by individual employees.225 Finally, issues

221. See Civil Serv. Employees Ass'n v. Milowe, 412 N.Y.S.2d 432 (App. Div.), modified sub nom. Civil Serv. Employees Ass'n v. Newman, 389 N.E.2d 833 (N.Y. 1979); Town of Clay v. Helsby, 379 N.Y.S.2d 896 (App. Div. 1976); Wakshull v. Helsby, 315 N.Y.S.2d 371 (App. Div. 1970); Civil Serv. Employees Ass'n v. Helsby, 297 N.Y.S.2d 813 (App. Div.), aff'd, 250 NE.2d 230 (N.Y. 1969); Board of Educ. v. Port Jefferson Station Teachers Ass'n, 387 N.Y.S.2d 515 (Sup. Ct. 1976); Katz v. Public Employment Relations Bd., 323 N.Y.S.2d 731 (Sup. Ct. 1971); Civil Serv. Employees Ass'n v. New York State Pub. Employment Relations Bd., 318 N.Y.S.2d 216 (Sup. Ct. 1971), aff'd, 332 N.Y.S.2d 741 (App. Div. 1972); cf. Friedman v. Union Free Sch. Dist. No. 1, 314 F. Supp. 223 (E.D.N.Y. 1970) (holding that teachers have limited right to distribute union literature on school premises); Maryvale Educators Ass'n v. Newman, 416 N.Y.S.2d 876 (App. Div. 1979) (concerning dispute between minority union and incumbent union over use of faculty mailboxes); Prisoners' Labor Union (Women's Division) v. Helsby, 354 N.Y.S.2d 694 (App. Div. 1974) (denying prisoners right to organize). 222. See Shelofsky v. Helsby, 295 N.E.2d 774 (N.Y. 1973); Metropolitan Suburban Bus Auth. v. Public Employment Relations Bd., 368 N.Y.S.2d 66 (App. Div. 1975); New York Pub. Library v. New York State Pub. Employment Relations Bd., 357 N.Y.S.2d 522 (App. Div. 1974), aff'd sub nom. New York Pub. Library, Astor, Lenox & Tilden Founds. v. New York State Pub. Employment Relations Bd., 337 N.E.2d 136 (N.Y. 1975); County of Ulster v. CSEA Unit of Sheriff's Dep't, 326 N.Y.S.2d 706 (App. Div. 1971); Russell v. Nassau Reg'l Off-Track Betting Corp., 406 N.Y.S.2d 235 (Sup. Ct. 1978). Public employee unions had the same duty as private unions to represent their members fairly. See Jackson v. Regional Transit Serv., 388 N.Y.S.2d 441, 444 (App. Div. 1976). 223. See Bauch v. City of New York, 237 N.E.2d 211 (N.Y. 1968); Warner v. Board of Educ., 415 N.Y.S.2d 939 (Sup. Ct. 1979). 224. See Zuckerman v. Board of Educ., 376 N.E.2d 1297 (N.Y. 1978); Board of Coop. Educ. Servs. v. New York State Pub. Employment Relations Bd., 363 N.E.2d 1174 (N.Y. 1977); Jefferson County Bd. of Supervisors v. New York State Pub. Employment Relations Bd., 330 N.E.2d 621 (N.Y. 1975); City of Albany v. Helsby, 278 N.E.2d 898 (N.Y. 1972); City of Newburgh v. Newman, 421 N.Y.S.2d 673 (App. Div. 1979); City of Albany v. Public Employment Relations Bd., 395 N.Y.S.2d 502 (App. Div. 1977), afftd, 375 N.E.2d 409 (N.Y. 1978); Board of Educ. v. Helsby, 326 N.Y.S.2d 452 (App. Div. 1971), aft'd, 295 N.E.2d 797 (N.Y. 1973); cf. Long Island Signal Corp. v. County of Nassau, 273 N.Y.S.2d 188, 200 (Sup. Ct. 1966) (holding that county may not reject bid from lowest bidder on ground that union coerced it into giving contract to more expensive, but unionized bidder). But cf. Image Carrier Corp. v. Beame, 567 F.2d 1197, 1203 (2d Cir. 1977) (upholding New York City practice of awarding contracts only to firms employing union labor). 225. See Board of Educ. v. Nyquist, 397 N.E.2d 365 (N.Y. 1979); Jacobs v. Board of Educ., 409 N.Y.S.2d 234 (App. Div. 1978); DeCherro v. Civil Serv. Employees Ass'n, 400 N.Y.S.2d 902 (App. Div. 1977); Rieder v. State Univ. of N.Y., 366 N.Y.S.2d 37 (App. Div. 1975), aff'd, 351 N.E.2d 747 (N.Y. 1976); Merante v. Bums, 365 N.Y.S.2d 27 (App. Div. 1975); Albert v. City of New York, 431 N.Y.S.2d 240 (App. Term. 1980); Kaufman v. Goldberg, 315 N.Y.S.2d 35 (Sup. Ct. 1970); Deneen v. City of New York, 435 N.Y.S.2d 434 (Civ. Ct. 1980), rev'd, 453 N.Y.S.2d 140 (App. Term. 1982).

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of arbitration arose with frequency in public employee cases.226 But a different doctrinal configuration arose when other interests were in conflict, as was true of state labor law for public employees, which differed significantly from federal law under the NLRA. The first difference was that government entities were free to breach provisions of agreements negotiated with employee unions when the state had a legitimate interest in doing so. The second was that public employees in New York were denied the right to strike. The Court of Appeals elaborated upon the first doctrinal difference in Board of Education v. Areman.7 The court observed that while in "private matters. . . freedom to contract [was] virtually unlimited," the management of "public" affairs was "subject to restrictive policies which reflect governmental interests and public concerns." 228 Governments were "but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public which they represent."229 For this reason, government negotiators could not bargain away important

226. See Board of Educ. v. Middle Island Teachers Ass'n, 407 N.E.2d 411 (N.Y. 1980); Board of Higher Educ. v. Brown, 406 N.E.2d 438 (N.Y. 1980); Board of Educ. v. Hess, 400 N.E.2d 329 (N.Y. 1979); Civil Serv. Employees Ass'n, Inc., Westchester Chapter, Local 860 v. Town of Harrison, 397 N.E.2d 350 (N.Y. 1979); Board of Educ. v. Niagara-Wheatfield Teachers Ass'n, 389 N.E.2d 104 (N.Y. 1979); Mineola Union Free Sch. Dist. v. Mineola Teachers Ass'n, 389 N.E.2d 111 (N.Y. 1979); South Colonie Cent. Sch. Dist. v. South Colonie Teachers Ass'n, 388 N.E.2d 727 (N.Y. 1979); Allied Bldg. Inspectors Int'l Union of Operating Eng'rs, Local Union No. 211 v. Office of Labor Relations, 380 N.E.2d 303 (N.Y. 1978); Port Washington Union Free Sch. Dist. v. Port Washington Teachers Ass'n, 380 N.E.2d 280 (N.Y. 1978); Triborough Bridge & Tunnel Auth. v. District Council 37 of AFSCME, 380 N.E.2d 160 (N.Y. 1978); Triborough Bridge & Tunnel Auth. v. Bridge & Tunnel Officers Benevolent Ass'n, 376 N.E.2d 199 (N.Y. 1978); Acting Superintendent ofSch. v. United Liverpool Faculty Ass'n, 369 N.E.2d 746 (N.Y. 1977); Caso v. Coffey, 359 N.E.2d 683 (N.Y. 1976); Board ofEduc. v. Bellmore-Merrick United Secondary Teachers, Inc., 347 N.E.2d 603 (N.Y. 1976); Professional Staff Congress/City Univ. of N.Y. v. Board of Higher Educ., 347 N.E.2d 918 (N.Y. 1976); Hempstead Classroom Teachers Ass'n v. Board of Educ., 434 N.Y.S.2d 259 (App. Div. 1980); Depew Union Free Sch. Dist. v. Depew Teachers Org., Inc., 430 N.Y.S.2d 747 (App. Div. 1980); Board ofEduc. v. Cohen, 423 N.Y.S.2d 195 (App. Div. 1979); Superintendent of Sch. v. United Liverpool Faculty Ass'n, 422 N.Y.S.2d 185 (App. Div. 1979); Board of Educ. v. West Babylon Teachers Ass'n, 421 N.Y.S.2d 387 (App. Div. 1979), affd, 420 N.E.2d 89 (N.Y. 1981); Civil Serv. Bar Ass'n, Local 237 v. City of New York, 407 N.Y.S.2d 160 (App. Div. 1978); Kendall Club Police Benevolent Ass'n v. City of Jamestown, 407 N.Y.S.2d 348 (App. Div. 1978); Yonkers Fed'n of Teachers v. Board of Educ., 399 N.Y.S.2d 891 (App. Div. 1977), aff'd, 385 N.E.2d 1300 (N.Y. 1978); Bursor v. Levitt, 389 N.Y.S.2d 186 (App. Div. 1976); City of Auburn v. Nash, 312 N.Y.S.2d 700 (App. Div. 1970). 227. 362 N.E.2d 943 (N.Y. 1977). 228. Id. at 946. 229. Id.

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rights, such as the right to discharge employees for budgetary reasons,23° the right to grant tenure to teachers,231 the right to select the

230. See Schwab v. Bowen, 363 N.E.2d 341,341 (N.Y. 1977); New York City Sch. Bds. Ass'n v. Board of Educ., 347 N.E.2d 568, 573-74 (N.Y. 1976); Mutual Aid Ass'n of Paid Fire Dep't v. City of Yonkers, 401 N.Y.S.2d 98, 100 (App. Div. 1978); Osoba v. City of Beacon, 393 N.Y.S.2d 596, 596 (App. Div. 1977); DeLury v. City of New York, 381 N.Y.S.2d 236,238 (App. Div. 1976); De Milia v. State, 412 N.Y.S.2d 953, 956 (Sup. Ct. 1978), modified, 421 N.Y.S.2d 70 (App. Div. 1979); cf. Koch v. Yunich, 533 F.2d 80, 82-83 (2d Cir. 1976) (upholding against constitutional challenge legislative criteria for dismissals due to economic difficulties); Jones v. Carey, 389 N.Y.S.2d 921,924 (App. Div. 1976) (holding that firemen with volunteer or veteran status could not be terminated through economic job elimination when similar positions were vacant); Davis v. Board of Educ., 33 N.Y.S.2d 311, 313 (App. Div.) ("The questions of policy raised by the Board of Education and the manner in which it will adjust itself to a contracting school attendance ... are proper subjects for appeal to the legislature."), modified, 43 N.E.2d 67 (N.Y. 1942). Trim v. Milham, 247 N.Y.S.2d 531, 533 (Sup. Ct. 1964) (holding that city was bound by legislation limiting patrolman assignments); Del Gaudio v. Zurmuhlen, 213 N.Y.S.2d 157, 159 (Sup. Ct. 1961) (holding that city was bound by overtime legislation). But see Port Jefferson Station Teachers Ass'n v. Brookhaven-Comsewogue Union Free Sch. Dist., 383 N.E.2d 553, 554 (N.Y. 1978) (holding that short-term agreement requiring district to maintain agreed level of specialist services was not violative of public policy); Yonkers Fed'n of Teachers v. Board of Educ., 376 N.E.2d 1326, 1327 (N.Y. 1978) (upholding job security clause where city could have taxed to provide needed revenue); Patrolmen's Benevolent Ass'n v. City of New York, 359 N.E.2d 1338, 1341 (N.Y. 1976) (stating that wage freeze legislation was not applicable to judicial judgment granting wage increase); Board of Educ. v. Yonkers Fed'n of Teachers, 353 N.E.2d 569, 570 (N.Y. 1976) (finding that wage freeze legislation directing recourse to attrition did not invalidate job security agreement); Associated Teachers, Inc. v. Board of Educ., 306 N.E.2d 791, 793 (N.Y. 1973) (holding that moratorium legislation was not applicable to arbitrator's award granting sabbaticals to teachers); Gadbow v. American Arbitration Ass'n, 416 N.Y.S.2d 121, 122 (App. Div. 1979) (upholding contract to make teachers' aides available within budgetary allocations); Houghton v. Schuler, 403 N.Y.S.2d 366, 367 (App. Div. 1978) (upholding job security provision). For other cases dealing with sabbatical leaves, see Board of Education v. Three Village Teachers'Association,419 N.Y.S.2d 665 (App. Div. 1979); Elwood Union FreeSchool DistrictNo. I v. Helsby, 359 N.Y.S.2d 343 (App. Div. 1974); and Messano v. Boardof Education, 331 N.Y.S.2d 779 (App. Div. 1972). 231. See Honeoye Falls-Lima Cent. Sch. Dist. v. Honeoye Falls-Lima Educ. Ass'n, 402 N.E.2d 1165, 1166 (N.Y. 1980) (dictum); Candor Cent. Sch. Dist. v. Candor Teachers Ass'n, 366 N.E.2d 826, 828 (N.Y. 1977); Cohoes City Sch. Dist. v. Cohoes Teachers Ass'n, 358 N.E.2d 878, 879 (N.Y. 1976); United Liverpool Faculty Ass'n v. Board of Educ., 438 N.Y.S.2d 397,398 (App. Div. 1979), aff'd, 420 N.E.2d 386 (N.Y. 1981); Rodriguez-Abad v. Kibee, 418 N.Y.S.2d 430, 431 (App. Div. 1979); Board of Educ. v. Middle Island Teachers Ass'n, 414 N.Y.S.2d 372, 373 (App. Div. 1979), rev'd,407 N.E.2d 411 (N.Y. 1980); Morris Cent. Sch. Dist. Bd. of Educ. v. Morris Educ. Ass'n, 388 N.Y.S.2d 371, 373 (App. Div. 1976); Legislative Conference of City Univ. of N.Y. v. Board of Higher Educ., 330 N.Y.S.2d 688, 690-91 (App. Div.), aftd, 293 N.E.2d 92 (N.Y. 1972). However, matters relating to denial of tenure and dismissal of teachers, especially matters of procedure, could be bargained away. See North Syracuse Cent. Seh. Dist. v. North Syracuse Educ. Ass'n, 379 N.E.2d 1193, 1196 (N.Y. 1978); Northeast Cent. Sch. Dist. v. Webutuck Teachers Ass'n, 418 N.Y.S.2d 952, 954 (App. Div. 1979), aft'd, 417 N.E.2d 567 (N.Y. 1980); Aptekar v. Board of Higher Educ., 414 N.Y.S.2d 156, 158 (App. Div. 1979); Board of Higher Educ. v. Brown, 411 N.Y.S.2d 593, 594 (App. Div. 1978), affd, 406 N.E.2d 438 (N.Y. 1980); Board of Educ. v. Merrick Faculty Ass'n, 410 N.Y.S.2d 876, 880 (App. Div. 1978); Ithaca City Sch. Dist. v. Ithaca Teachers

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curricula and educational materials in public schools,232 the right to make work assignments,233 the right to renegotiate a contract after a reasonable time," and various other statutory rights.25 Another case invalidated a requirement of compulsory arbitration as violative of the one-person, one-vote principle.236

Ass'n, 394 N.Y.S.2d 321, 322 (App. Div. 1977). 232. See In re Red Hook Cent. Sch. Dist., 424 N.Y.S.2d 505, 506 (App. Div. 1980); Board of Educ. v. Three Village Teachers' Ass'n, 421 N.Y.S.2d 598, 599 (App. Div. 1979), aff d, 417 N.E.2d 570 (N.Y. 1980). 233. See Dutchess County Chapter, CSEA, Inc. v. Dutchess County, 416 N.Y.S.2d 176, 177 (Sup. Ct. 1979), rev'd on other grounds, 432 N.Y.S.2d 717 (App. Div. 1980), affd, 426 N.E.2d 488 (N.Y. 1981); cf. South Orangetown Kitchen Workers Ass'n v. South Orangetown Cent. Sch. Dist., 422 N.Y.S.2d 597, 599-600 (Sup. Ct. 1979) (upholding right to abolish jobs and give work to outside contractor). 234. See Dobbs Ferry Union Free Sch. Dist. v. Dobbs Ferry United Teachers, 395 N.Y.S.2d 988, 995 (Sup. Ct. 1977). 235. See Kivo v. Levitt, 409 N.E.2d 1359, 1359 (N.Y. 1980) (amount of retirement benefits); Union Free Sch. Dist. No. 2 v. Nyquist, 341 N.E.2d 532, 533 (N.Y. 1975) (right to transfer credits); Union Free Sch. Dist. No. 6 v. New York State Div. of Human Rights, 349 N.Y.S.2d 757,760 (App. Div. 1973) (right to sue for sex discrimination); Farrigan v. Helsby, 346 N.Y.S.2d 39, 41 (App. Div. 1973) (right not to be compelled to join union); Security Unit Employees, Council 82 v. Rockefeller, 351 N.Y.S.2d 348, 353 (Sup. Ct. 1974) (right to retirement benefits); see also Nyack Bd. of Educ. v. Nyack Teachers Ass'n, 352 N.Y.S.2d 973, 977 (Sup. Ct. 1974) (finding that a grant of free tuition to children of nonresident teachers unfairly prefers them to other teachers and thus violates equal protection); cf. Board of Educ. v. New Paltz United Teachers, 379 N.E.2d 160, 161 (N.Y. 1978) (upholding arbitrability of discontinuance of school district's prior practice which granted free tuition to children of nonresident teachers); Board of Higher Educ. v. Professional Staff Congress/CUNY, 362 N.Y.S.2d 985, 989 (Sup. Ct. 1975) (upholding contract provision barring arbitration in discrimination cases). The Court of Appeals also allowed bargaining as to pension benefits in cases decided in the late 1970s. See, e.g., Incorporated Village of Lynbrook v. New York State Pub. Relations Bd., 399 N.E.2d 55, 58 (N.Y. 1979); Schacht v. City of New York, 346 N.E.2d 518, 519 (N.Y. 1976). 236. See City of Amsterdam v. Helsby, 362 N.Y.S.2d 698,709 (Sup. Ct. 1974). This aspect of the holding was reversed on appeal. See City of Amsterdam v. Helsby, 332 N.E.2d 290, 293 (N.Y. 1975). On the other hand, public entities were required to bargain with employee unions about terms and conditions of employment. See id. at 292-93; Saratoga Springs City Sch. Dist. v. New York State Pub. Employment Relations Bd., 416 N.Y.S.2d 415, 420 (App. Div. 1979); City of New Rochelle v. Crowley, 403 N.Y.S.2d 100, 101 (App. Div. 1978); City Sch. Dist. v. Helsby, 346 N.Y.S.2d 27,29 (App. Div. 1973); City of Coming v. Coming Police Dep't, 366 N.Y.S.2d 241,246 (Sup. Ct. 1974), aff'd, 373 N.Y.S.2d 1022 (App. Div. 1975); see also Wyandanch Union Free Sch. Dist. v. Wyandanch Teachers Ass'n, 397 N.E.2d 384, 385 (N.Y. 1979) (holding that contract provisions about working conditions are validly subject to arbitration). But see International Association of Firefighters, Local 589 v. Helsby, 399 N.Y.S.2d 334, 336 (App. Div. 1977) (finding that issue of number of men on duty, as distinguished from safety, generally is not a matter of working conditions). Courts also determined that there was freedom to bargain about matters such as disciplinary policies, even in the absence of express statutory provisions granting such authority. See Board of Educ. v. Associated Teachers, Inc. 282 N.E.2d 109, 114 (N.Y. 1972); Malone v. City of Troy, 413

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The second way in which labor law for public employees differed from that for private employees is that public employees lacked the right to strike. As Chief Judge Stanley Fuld explained for the Court of Appeals, the ability of the Legislature to establish priorities among government services would be destroyed if public employees could, with impunity, engage in strikes which deprive the public of essential services. The striking employees, by paralyzing a city through the exercise of naked power, could obtain gains wholly disproportionate to the services rendered by them and at the expense of the public and other public employees. The consequence would be the destruction of democratic legislative processes because budgeting and the establishment of priorities would no longer result from the free choice of the electorate's representatives but from the coercive effect of paralyzing strikes of public employees.27 Strikes by public employees were therefore subject to injunction,238 and

N.Y.S.2d 525, 526 (App. Div. 1979); Auburn Police Local 195 v. Helsby, 404 N.Y.S.2d 396, 399 (App. Div. 1978), aff'd, 389 N.E.2d 1106 (N.Y. 1979); see also Board of Educ. v. Bami, 401 N.E.2d 912, 913 (N.Y. 1980) (upholding arbitrability of disciplinary issue); DePaulo v. City of Albany, 421 N.Y.S.2d 419, 421 (App. Div. 1979) (same), affd, 406 N.E.2d 1064 (N.Y. 1980). Courts also identified and upheld additional areas as proper subjects of contract negotiation, including payments to welfare funds, see Local 456 International Brotherhood of Teamsters v. Town of Cortlandt, 327 N.Y.S.2d 143, 145-46 (Sup. Ct. 1971); class size, see West Irondequoit Teachers Ass'n v. Helsby, 315 N.E.2d 775, 778 (N.Y. 1974) (by implication); Board of Educ. v. Greenburgh Teachers Federation, Local 1788, 381 N.Y.S.2d 517, 518 (App. Div. 1976); see also Susquehanna Valley Cent. Sch. Dist. v. Susquehanna Valley Teachers' Ass'n, 339 N.E.2d 132, 134 (N.Y. 1975) (upholding arbitrability of class size); allowances for uniforms, see Village of Ossining Police Ass'n v. Village of Ossining, 358 N.Y.S.2d 555, 556 (App. Div. 1974); Village of Ossining Police Ass'n v. Village of Ossining, 358 N.Y.S.2d 554, 555 (App. Div. 1974); holidays, see County of Westchester v. Westchester County CSEA, Inc., 378 N.Y.S.2d 952, 954-55 (Sup. Ct. 1976); and ratios of salaries of different employee classifications in a municipal work force. See Niagara Wheatfield Admin'rs Ass'n v. Niagara Wheatfield Cent. Sch. Dist., 375 N.E.2d 37, 39 (N.Y. 1978). 237. City of New York v. De Lury, 243 N.E.2d 128, 132 (N.Y. 1968). 238. See Kuntz v. Newburgh Teachers Ass'n, 347 N.Y.S.2d 905 (Sup. Ct. 1973); Manhattan & Bronx Surface Transit Operating Auth. v. Quill, 266 N.Y.S.2d 423 (Sup. Ct. 1966); New York City Transit Auth. v. Quill, 266 N.Y.S.2d 296 (Sup. Ct. 1965); City of New York v. Social Service Employees Union, 266 N.Y.S.2d 277 (Sup. Ct. 1965), afd, 271 N.Y.S.2d 585 (App. Div. 1966); Westchester County v. Westchester County Fed'n of Labor, 115 N.Y.S.2d 144 (Sup. Ct. 1952). A frequent issue in suits for an injunction was whether the activities of employees amounted to a strike. See Dowling v. Bowen, 385 N.Y.S.2d 355, 356 (App. Div. 1976); Bellmore-Merrick Cent. High Sch. Dist. v. Bellmore-Merrick United Secondary Teachers, Inc., 378 N.Y.S.2d 881, 885 (Sup. Ct. 1975); Caso v. Katz, 324 N.Y.S.2d 712, 714 (Sup. Ct.), affd, 328 N.Y.S.2d 615 (App. Div. 1971). Compare Zaner v. Board of Educ., 429 N.Y.S.2d 725, 725 (App. Div. 1980) (ruling that teacher who stayed home to avoid pressure of impending strike was effectively participant in strike), with Van Vlack v. Temullo, 425 N.Y.S.2d 347 (App. Div. 1980) (holding that refusal to work due to fear of personal injury did not constitute unlawful refusal of emergency work assignment to

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employees who went on strike could be held in contempt of court,2 39 fined two days pay for each day they remained out on strike2"0 and subjected to criminal prosecution.24' Public employee unions could also be required to pledge not to strike.242 Only an appropriate public official, however, could seek an injunction against a strike; a mere citizen could not.243

replace striking employees), rev'd on other grounds, 425 N.E.2d 862 (N.Y. 1981). 239. See Board of Edue. v. Pisa, 389 N.Y.S.2d 938 (App. Div. 1976); City Sch. Dist. v. Schenectady Fed'n of Teachers, 375 N.Y.S.2d 179 (App. Div. 1975); State v. Fuller, 296 N.Y.S.2d 37 (App. Div. 1968); Board of Educ. v. Shanker, 283 N.Y.S.2d 548 (Sup. Ct.), afid, 286 N.Y.S.2d 453 (App. Div. 1967). Denial of jury trial in contempt proceedings was upheld even though juries were available in other sorts of contempt cases, see Rankin v. Shanker, 242 N.E.2d 802 (N.Y. 1968), but violators of an injunction could not be punished if procedural defects had occurred in obtaining the injunction. See In re Utica Teachers Ass'n, 325 N.Y.S.2d 587 (Sup. Ct. 1971). 240. See Cheeseman v. Carey, 623 F.2d 1387 (2d Cir. 1980); Tepper v. Galloway, 481 F. Supp. 1211 (E.D.N.Y. 1979); Di Maggio v. Brown, 225 N.E.2d 871 (N.Y. 1967); Cirillo v. Board of Educ., 321 N.Y.S.2d 952 (Sup. Ct. 1971); Zeluck v. Board of Educ., 307 N.Y.S.2d 329 (Sup. Ct. 1970), aff'd, 319 N.Y.S.2d 409 (App. Div. 1971). 241. See, e.g., People v. Vizzini, 359 N.Y.S.2d 143 (Sup. Ct. 1974). 242. See Rogoff v. Anderson, 310 N.Y.S.2d 174, 177-78 (App. Div. 1970), affd, 271 N.E.2d 553 (N.Y. 1971). 243. See Sadow v. Long Island R.R., 205 N.Y.S.2d 601, 603 (Sup. Ct. 1960). As labor law developed in the second half of the century, a number of other new issues also emerged. One was the extent to which federal law preempted state law. See Slocum v. Delaware, Lackawanna & W. R.R., 339 U.S. 239,244 (1950), rev'g 87 N.E.2d 532 (N.Y. 1949); Fitzgerald v. Catherwood, 388 F.2d 400, 403-05 (2d Cir. 1968); District 2, Marine Eng'rs Beneficial Ass'n v. New York Shipping Ass'n, 287 N.Y.S.2d 799, 803 (App. Div.), modified, 239 N.E.2d 650 (N.Y. 1968); Committee of Intems & Residents v. New York State Labor Relations Bd., 391 N.Y.S.2d 503, 505 (Sup. Ct. 1977); ABC v. Brandt, 287 N.Y.S.2d 719 (Sup. Ct.), affid, 293 N.Y.S.2d 988 (App. Div. 1968). Another issue was the extent to which unions were exempt from state antitrust laws and thereby free to engage in economic coercion. See De Neri v. Gene Louis, Inc., 25 N.Y.S.2d 463,464 (App. Div. 1941), modified, 42 N.E.2d 602 (N.Y. 1942); State v. Horsemen's Benevolent & Protective Ass'n, 367 N.Y.S.2d 622,628 (Sup. Ct. 1974), aff'd, 389 N.Y.S.2d 868 (App. Div. 1976); People v. Wisch, 296 N.Y.S.2d 882, 888 (Sup. Ct. 1969); Consumer-Farmer Milk Coop., Inc. v. Milk Drivers & Dairy Employees Local No. 584, 211 N.Y.S.2d 985, 988 (Sup. Ct. 1960). Courts also dealt with issues concerning enforcement of fiduciary duties in regard to the management of union trust funds and other union investments. See McKay v. Stewart, 272 N.E.2d 887 (N.Y. 1971); Thacher v. United Construction Workers, UMW, 180 N.E.2d 245, 247 (N.Y. 1962); Hellman v. Ploss, 359 N.Y.S.2d 823, 824 (App. Div. 1974); Duffy v. Schenck, 346 N.Y.S.2d 616, 619 (App. Div. 1973); Woodley v. Butler, 421 N.Y.S.2d 797, 799-800 (Sup. Ct. 1979); Bibeau v. Campbell, 311 N.Y.S.2d 218 (Sup. Ct.), affd, 316 N.Y.S.2d 991 (App. Div. 1970); Dairy Transp. Ass'n v. Decker, 248 N.Y.S.2d 672, 674 (Sup. Ct. 1963); House v. Schwartz, 188 N.Y.S.2d 308, 313 (Sup. Ct. 1959); Goldstein v. Mangano, 417 N.Y.S.2d 368, 371-72 (Civ. Ct. 1978).

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D. Utility and Business Regulation Nowhere was the new, postwar role of the judiciary as arbiter of the claims of special interests clearer than it was on the subject of utility and business regulation. In part, the judiciary found itself in this unpleasant position because of the expansion of the state's regulatory apparatus. Charged with maintaining just and reasonable rates for consumers, the Public Service Commission ("PSC"), for example, strove to carry out its mandate by expanding its jurisdiction into two areas in addition to rate setting itself: first, into the definition of capital, and second, into analysis of utility and carrier expenses. Operating under a formula by which return was equal to total rates charged consumers minus total expenses, a commission that could force a reduction in expenses could similarly reduce the rates charged consumers, while the utility still earned the same return. Likewise, if the PSC could reduce capital expenditures, a smaller return and consequently lower charges to consumers would give the utility or carrier the same percentage return on its investment. Early regulators on the PSC understood these basic business facts, and they therefore directed the use of specified accounting methods by regulated entities that would enable the PSC to understand the realities of an entity's balance sheet.2" In 1930, the PSC also obtained jurisdiction to approve and disapprove contracts into which a regulated firm entered. 45 As the years progressed, the PSC continued to monitor accounting practices246 and to intrude its authority more and more into policing the contracts and business practices of those whom it regulated. The New York courts, in turn, sustained virtually every action that the PSC took. Among the sorts of contracts that the PSC examined and disap- proved were contracts between a regulated entity and an affiliated

244. See New York Edison Co. v. Maltbie, 2 N.E.2d 277, 279 (N.Y. 1936) (dictum); Rockland Light & Power Co. v. Maltbie, 271 N.Y.S. 858, 865 (App. Div. 1934) (dictum). 245. See Staten Island Edison Corp. v. Public Serv. Comm'n, 188 N.E. 713 (N.Y. 1934); New York State Elec. & Gas Corp. v. Public Serv. Comm'n, 281 N.Y.S. 384 (App. Div. 1935), aff'd, 10 N.E.2d 567 (N.Y. 1937). However, the PSC could not disapprove contracts made before April 24, 1930, the effective date of the act giving it such authority. See New York State Elec. & Gas Corp. v. Maltbie, 264 N.Y.S. 97, 100 (Sup. Ct. 1933), rev'd, 270 N.Y.S. 1010 (App. Div. 1934), aff'd, 195 N.E. 182 (N.Y. 1935). 246. See, e.g., Rochester Gas & Elec. Corp. v. Maltbie, 76 N.Y.S.2d 671, 675 (App. Div. 1948); Republic Light, Heat & Power Co. v. Maltbie, 76 N.Y.S.2d 479, 482 (App. Div. 1948).

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interest, such as a parent or subsidiary company,247 management contracts, 248 contracts dealing with executive compensation24 9 and legal fees,250 and contracts providing dividends to shareholders or imposing indebtedness on the utility or carrier.251' The New York courts were not prepared to let "the rate-making power" become 'subservient to the discretion of [a utility] which may, by exorbitant and unreasonable salaries, or in some other improper way, transfer its earnings into what it is pleased to call 'operating expenses,""'252 nor would they permit a utility through "the systematic withdrawals of earnings and the reduction therefore of working capital" imperil its "capacity to maintain adequate service" without rate increases. 3 On other occasions, however, the PSC assisted utilities, for instance, in limiting their liability to customers for the negligence of their employees." In addition to regulating rates, the PSC also regulated other subsidiary transactions between utilities and their customers, such as the right to terminate service or demand security deposits, the location of service lines, and the lease, sale, and servicing of equipment.255

247. See General Tel. Co. v. Lundy, 218 N.E.2d 274, 281-82 (N.Y. 1966); Chelrob, Inc. v. Barrett, 57 N.E.2d 825,835 (N.Y, 1944); New York Tel. Co. v. Public Serv. Comn'n, 410 N.Y.S.2d 124, 130-32 (App. Div. 1978); International Ry. v. Public Serv. Comm'n, 36 N.Y.S.2d 125, 135 (App. Div. 1942), affd, 47 N.E.2d 435 (N.Y. 1943). 248. See InternationalRy., 36 N.Y.S.2d at 135. 249. See Pavilion Natural Gas Co. v. Public Serv. Comm'n, 393 N.Y.S.2d 102, 103 (App. Div. 1977); Brooklyn Union Gas Co. v. Public Serv. Comm'n, 187 N.Y.S.2d 207, 212 (App. Div. 1959), aff'd, 168 N.E.2d 390 (N.Y. 1960). 250. See New York Tel. Co., 410 N.Y.S.2d at 133. 251. See Public Serv. Comm'n v. Jamaica Water Supply Co., 366 N.E.2d 872,873 (N.Y. 1977); People v. County Transp. Co., 103 N.E.2d 421,424 (N.Y. 1952). 252. General Tel. Co., 218 N.E.2d at 278 (alteration in original) (quoting Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339, 346 (1892)). 253. Jamaica Water Supply Co., 366 N.E.2d at 873. 254. See Lee v. Consolidated Edison Co., 413 N.Y.S.2d 826, 828 (App. Term. 1978); Newman v. Consolidated Edison Co., 360 N.Y.S.2d 141, 142 (App. Term. 1973). For a case refusing to approve the PSC's limitation of liability, see Shanlonan v. ConsolidatedEdison Co., 404 N.Y.S.2d 787 (Civ. Ct. 1978). 255. See Taylor v. Consolidated Edison Co., 552 F.2d 39,44 (2d Cir. 1977); Kalinsky v. Long Island Lighting Co., 484 F. Supp. 176, 181 (E.D.N.Y. 1980); Center for United Labor Action v. Consolidated Edison Co., 376 F. Supp. 699, 702 (S.D.N.Y. 1974); Bronson v. Consolidated Edison Co., 350 F. Supp. 443,447 (S.D.N.Y. 1972); National Merchandising Corp. v. Public Serv. Comm'n, 158 N.E.2d 714, 716 (N.Y. 1959); Barroncini v. Shang, 430 N.Y.S.2d 752, 753 (App. Div. 1980); Chrysler Corp. v. Syracuse Suburban Gas Co., 428 N.Y.S.2d 361, 363 (App. Div. 1980); Rochester Gas & Elec. Corp. v. Public Serv. Comm'n, 422 N.Y.S.2d 770, 775 (App. Div. 1979); Niagara Mohawk Power Corp. v. Public Serv. Comm'n, 412 N.Y.S.2e 485, 487 (App. Div. 1979); Leroy Fantasies, Inc. v. Swidler, 354 N.Y.S.2d 182, 188 (App. Div. 1974); Canpo Corp. v. Feinberg, 110 N.Y.S.2d 250, 254-55 (App. Div.), aff'd, 106 N.E.2d 70 (N.Y. 1952); Utica Transit Corp. v.

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The PSC also sought to expand its jurisdiction by regulating utility advertising. It thereby embroiled itself in controversy as the legitimate interests of the groups it was attempting to help came into conflict with the equally legitimate interests of competing groups. In one case, the PSC, in an effort beginning in 1973 to promote energy conservation, sought to bar Central Hudson Gas & Electric from inserting advertise- ments in its bills urging customers to consume more electricity, while in another it sought to enjoin New York City's Consolidated Edison Company from inserting materials supporting increased use of nuclear power plants on the ground that their benefits far exceeded their potential risks. Although a trial judge invalidated portions of the PSC's directive in this case,256 the appellate division reversed his ruling and affirmed the PSC in its entirety, and the Court of Appeals affirmed the appellate division.257 However, the United States Supreme Court, relying on newly proclaimed commercial free speech rights under the First Amendment, reversed the Court of Appeals.258 Nevertheless, even after the Supreme Court's reversal, the Court of Appeals sustained the determination of the PSC that the expense of the advertising allowed under the First Amendment could not be included in the utilities' rate base. 9 Despite restrictions such as those considered above, which were imposed on common carriers and utilities during the postwar era, the two regulated industries did not fully lose their basic property rights. "Under the settled law of the State," a franchise constituted "a property right.., from the enjoyment of which" a carrier or utility could not "be excluded without compensation."2" Thus, when the police commissioner of the City of New York turned a number of main avenues into one-way streets, the Court of Appeals required the City to pay just compensation to bus companies holding franchises to operate buses on

Feinberg, 100 N.Y.S.2d 916, 919 (App. Div. 1950); Levine v. Long Island Lighting Co., 349 N.Y.S.2d 963, 970 (Sup. Ct. 1973); Turner v. Rochester Gas & Elec. Corp., 345 N.Y.S.2d 421,428 (Sup. Ct. 1973); O'Sullivan v. Feinberg, 114 N.Y.S.2d 515, 519 (Sup. Ct. 1951); Leighton v. New York Tel. Co., 55 N.Y.S.2d 193, 195 (Sup. Ct. 1945); In re City Ice & Fuel Co., 18 N.Y.S.2d 588, 590 (Sup. Ct. 1940). 256. See Consolidated Edison Co. v. Public Serv. Comm'n, 402 N.Y.S.2d 551 (Sup. Ct. 1978). 257. See Consolidated Edison Co. v. Public Serv. Comm'n, 407 N.Y.S.2d 735, 738 (App. Div. 1978), aft'd, 390 N.E.2d 749 (N.Y. 1979). 258. See Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980). 259. See Rochester Gas & Elec. Corp. v. Public Serv. Comm'n,413 N.E.2d 359, 359 (N.Y. 1980). 260. City of New Rochelle v. westchester Elec. R.R., 29 N.Y.S.2d 805, 807 (Sup. Ct. 1940), affid, 29 N.Y.S.2d 719 (App. Div. 1941), af'd,42 N.E.2d 23 (N.Y. 1942).

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the avenues in question in both directions.261 It still remained the case that, however broad the police power might become, the New York courts would uphold franchised "property... protected both by the State and Federal Constitutions against a substantial curtailment or destruction 2 62 by the government without payment of fair compensation." Meanwhile, other business endeavors fared even better as judges struck down a wide variety of regulatory legislation which interfered with property or entrepreneurial rights. The cases fell into essentially two categories: (1) cases involving statutes that had no public purpose at all and thus reflected gratuitous hostility to a regulated entity, and (2) those involving legislation that aided one group of individuals at the expense of another rather than aiding the community as a whole. Defiance Milk Products Co. v. Du Mond 63 was the leading case in the first category. The statute at issue in Du Mond, which prohibited the sale of evaporated or condensed skimmed milk in containers weighing less than ten pounds,2" had the effect, according to the Court of Appeals, of prohibiting all consumer sales of "a wholesome and useful 2 6 food product. 1 The court conceded that, if any "reasonable basis [had] existed for an absolute ban against evaporated skimmed milk," the prohibition on its sale would have been valid, but "no one ha[d] been able to discover any such basis."26 The court therefore declared the act invalid. For the same reason, analogous cases in lower courts struck down municipal ordinances limiting the hours during which barber shops could remain open267 and prohibiting the use of rope-geared, hydraulic elevators.263 Lurking in Du Mond was a related principle against overbroad legislation. The state had attempted to defend the legislation as an anti- fraud measure designed "to see to it that customers did not get evaporated skimmed milk when they were trying to buy evaporated whole milk."269 The court responded that "the Legislature could have demand-

261. See Eighth Ave. Coach Corp. v. City of New York, 35 N.E.2d 907, 913 (N.Y. 1941). 262. Id. 263. 132 N.E.2d 829 (N.Y. 1956). 264. See id. at 830. 265. Id. at 831. 266. Id. 267. See People ex rel. Pinello v. Leadbitter, 85 N.Y.S.2d 287, 293 (Sup. Ct. 1948), aff'd, 89 N.Y.S.2d 924 (App. Div. 1949). 268. See Streb v. City of Rochester, 222 N.Y.S.2d 813, 820-21 (Sup. Ct. 1961). 269. Du Mond, 132 N.E.2d at 831.

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ed other kinds of labels or special sizes, shapes or colors of contain- 27 ers , 0 to protect consumers, but that an absolute "prohibition was, as matter of law, not a reasonable way of dealing with such confusion or 271 possibility of confusion as the legislators might have found to exist. The legislature could not, that is, outlaw a broad range of legitimate activities in order to reach occasional illicit acts occurring under the umbrella of the legitimate ones. Other cases gave effect to this overbreadth principle. In People v. Bunis,272 for example, the Court of Appeals struck down a prohibition of all sales of magazines without covers-a prohibition that had been enacted in order to prevent sales of magazines, the covers of which had been returned to publishers for credit upon a false representation that the magazine itself had not been sold.273 The court held it "unreasonable and beyond the legitimate exercise of the police power for the Legisla- ture to interdict all sales, permissible and illicit alike, in order to prevent those which are illicit."274 Similarly, People v. Estreich275 declared unconstitutional a statute that prohibited junk dealers from selling stolen merchandise, whether or not they had reason to know it was stolen, simply in order to prevent them from selling goods they knew to be stolen.276 So, too, in People v. Kuc,277 the court invalidated a municipal ordinance which prohibited all sales of newspapers on village streets after nine p.m. in order to prevent noisy hawking of newspapers during late evening hours.278 A second category of cases regularly found unconstitutional by the courts involved laws that assisted a single group in the community rather than protecting the health, safety, or welfare of the community as a whole. The leading case of Trio Distributor Corp. v. City of Albany/79 arose in response to a municipal ordinance that required the Good Humor Corporation and its distributors to staff Good Humor trucks with two 280 individuals if ice cream products were being sold from the trucks.

270. Id. 271. Id. 272. 172 N.E.2d 273 (N.Y. 1961). 273. See id. at 273-74. 274. Id. at 274. 275. 79 N.E.2d 742 (N.Y. 1948). 276. See id. at 742. 277. 4 N.E.2d 939 (N.Y. 1936). 278. See id. at 941. 279. 143 N.E.2d 329 (N.Y. 1957). 280. See id. at 330.

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The majority of the Court of Appeals suspected that the ordinance had been adopted to protect shopkeepers who sold ice cream from competition by itinerant Good Humor peddlers, and for this reason, the court found the ordinance invalid, declaring that "the police power is not designed to aid one group in a community against another, as the courts of this State have frequently had occasion to hold. 28' Even though the stated purpose of the ordinance, as the dissent pointed out, was protection of the safety of children in the streets,282 that stated purpose would not immunize legislation from unconstitutionality if judges concluded that the real goal of the legislature was to benefit one group in the community at the expense of another.283 A "policy of achieving 'equitable distribution' ... [could] not be frustrated by ... [a] state's desire to protect a segment of its population."2 '4 Just as a statute could not be enacted for the purpose of advancing the interests of one group of individuals at the expense of another, so too it could not be administered with that purpose in mind. Swalbach v. State Liquor Authorit 85 involved a challenge to the State Liquor Authority's policy of prohibiting retail wine and liquor stores from being situated in modem shopping centers, 286 apparently out of a "grave concern" that shopping centers were causing "the untimely demise of tens of thousands of small local retail businesses' '287 and were "danger- ously imperil[ing] the existence of the small local merchants. ' 288 But, however laudable the goal of preserving small town businesses may have been, the State Liquor Authority could not legitimately act for that purpose. Its sole power was to promote the "'public convenience and advantage, not to aid a group of established small town merchants at the expense of entrepreneurs seeking to exploit new developments in the economy found "to be convenient" by "the public itself.' 290 An agency like the State Liquor Authority could not act in pursuit

281. Id. at 332. 282. See id. at 334 (dissenting opinion). 283. See id. at 332; accordGood Humor Corp. v. City of New York, 36 N.Y.S.2d 85,90 (App. Div. 1942), aff'd, 49 N.E.2d 153 (N.Y. 1943). 284. State v. Strong Oil Co., 433 N.Y.S.2d 345, 353 (Sup. Ct. 1980) (citing Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 753(b)(1)(F) (1976)). 285. 166 N.E.2d 811 (N.Y. 1960). 286. See id. at 812. 287. Id. at 817 (dissenting opinion). 288. Id. at 817-18 (dissenting opinion). 289. Id. at 814 (quoting Alcoholic Beverage Control Law § 101-c (Act of April 15, 1950, ch. 689, 1950 N.Y. Laws 1566 (repealed 1964))). 290. Id. at 815.

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of the interests of only one segment of the community even when it 29 consisted "of community residents and political leaders., 1 Thus, letters from a state senator, assemblyman, and councilperson, together with a petition containing over 800 signatures in protest of the opening of a discotheque, could not justify the Authority in refusing to issue a liquor license to the new business.29 While the Authority might have been "'swayed by the number of objectors,"' the Court of Appeals declared it essential to "'keep in mind that ours is a government of law and not of men; and that decisions, especially where property rights are protected by Constitutions and laws, must be based upon such laws and not upon sympathy or public opinion.' ' 293 In an analogous case, the court had earlier held that the New York City Commissioner of Licenses could not refuse to approve the location of a junk yard on land zoned "as an unrestricted use district" simply because of "mere objections of the residents." ' ' These cases appear to point back toward the earlier effort by Judge Irving Lehman in the mid-1930s to preserve the police power from capture by special interests, yet at the same time leave legislative bodies free to address the complex problems arising from the innumerable failures of the free market that were occurring in twentieth-century New York. As did Lehman, the judges of the post-World War II Court of Appeals frowned upon distributional decisions made solely in response to political pressures. Thus, they would not, as we have just seen, sanction the closing of a junk yard in an area zoned for unrestricted use merely because local residents objected to its opening.295 But Lehman and later judges would have protected the residents if zoning authorities had created legitimate expectations on their part by imposing restrictions in a comprehensive plan. As a result, established people in a community, who had used their political power to obtain a proper legislative or administrative determination that the good of the community consisted in the preservation of their rights, could have their rights protected. But individuals who had not used their political power in the proper forum could not thereafter use it elsewhere to defeat the claims of an entrepre- neur striving to make a profit by exploiting the free market.

291. Circus Disco, Ltd. v. New York State Liquor Auth., 409 N.E.2d 963, 970 (N.Y. 1980). 292. See id. at 971. 293. Id. (quoting Mollineaux v. Michaelis, 218 N.Y.S.2d 900, 903 (Sup. Ct. 1961), affd, 227 N.Y.S.2d 1022 (App. Div. 1962)). 294. Bologno v. O'Connell, 164 N.E.2d 389, 390, 392 (N.Y. 1959). 295. See id.

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Thus, the line between allowing regulations to deal with market failures and invalidating regulations when their goal was simple redistribution came down to whether the interest groups assisted by legislation had followed proper procedures in the legislative process. If they had laid a foundation for establishing a market failure as a justification for a legislative regulation, the courts typically would sustain the legislation. But, if they had failed to lay the foundation, a finding of unconstitutionality might occur. As thin and amorphous as this line might be, it is the only principled line that can be teased out of the New York cases. Unlike the United States Supreme Court, the New York courts were never willing to sustain all regulatory legislation that came before them, nor could they invalidate all except what was narrowly tailored to accomplish core health and safety concerns. An unprincipled alternative was to engage in ad hoc balancing on a case-by-case basis, as did one court in holding that a county ordinance prohibiting the idling of motor vehicles for more than three minutes was "an oppressive, unreasonable and arbitrary burden" in light of its "minuscule" effect in "combating air pollution. 296 Perhaps balancing was what they routinely did. But balancing, in turn, had its problems, as illustrated by the Court of Appeals' 4-3 decision in the case of Wignall v. Fletcher.297 At issue in Wignall was whether the Commissioner of Motor Vehicles could revoke the license of an eighty-two-year-old man who had been driving a motor vehicle with a license since 1910. The man, George Wignall, came to the Commissioner's attention when he became involved in the first accident in his driving career, which occurred when a boy ran into the street and into the rear end of Wignall's car.298 On one side of the scales was "the need for the ... exercise by the commissioner of his duties in his laudable effort to prevent unsafe driving on the highways. 299 On the other side was the fact that a "license to operate an automobile is of tremendous value to the individual ...for the essential purposes of attending at the village stores, taking his invalid wife to church on Sundays, and the like., 300 How would the judges of the Court of Appeals resolve this conflict? The conflict, it should be noted, is one that is resolved daily by

296. People v. Holbrook Transp. Corp., 378 N.Y.S.2d 939, 945 (Dist. Ct. 1976). 297. 103 N.E.2d 728 (N.Y. 1952). 293. See id. at 729. 299. Id. at 731. 300. Id. at 730-31.

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countless officials and citizens, who make judgments whether to license and insure drivers and whether to take to the road and drive. The conflict is also one involving the most serious considerations on both sides. For most Americans in the second half of the twentieth century, the capacity to drive a car may be the most important entitlement they have; without a car, they would lose access to employment, shopping, entertainment, and social connection. Driving is surely one of the key symbols of freedom and empowerment in late twentieth-century America. At the same time, automobiles wreak more physical and social destruction than anything else in our culture. Apart from the inevitable diseases associated with aging and dying, nothing causes more deaths, accidents, destruction, pollution, and pain than automobiles."' Every time a state official authorizes an individual to drive or declines to grant such an authorization, the official resolves this fundamental conflict between freedom and safety. That is, the official, or in the case of Wignall the fourth judge who created the one-vote majority on the Court of Appeals, determines whether safety, one of the two core values 302 protected by the police power, or individual freedom, one of the two central rights30 3 protected by the Constitution, shall, triumph. This central issue of how to balance health and safety against freedom is one for which fixed legal principles do not exist. This insight into the absence of principle is one at which the United States Supreme Court arrived in the late 1930s, when it decided to defer judicially to 3 whatever balances legislatures reached. ' The New York courts arrived at this same insight at least a decade earlier. And arguably, when the fourth judge on the Court of Appeals came down on the side of freedom in the Wignall case and ruled that the Motor Vehicle Bureau could not revoke the octogenarian's license, he too was conscious of the insight. We can never be certain, however, what the fourth judge and his brethren in the Wignall majority actually decided. All we know is what their opinion said. It said that, under proper circumstances, the Commis- sioner of Motor Vehicles would have power to revoke an octogenarian's license, but that in Wignall the attempt at revocation failed because the

301. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES: 1994, at 100 tbls.133, 134. 302. Health, of course, is the other. 303. Equality, of course, is the other. 304. See William E. Nelson, Regulatory Power as a Tool for the Redistribution of Wealth, 1920-1940, in ESSAYS IN HONOR OF JOHN PHILLIP REID (Hendrik Hartog & William E. Nelson eds., forthcoming 1999).

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Commissioner used improper procedures. After giving notice of a hearing under one section of the Vehicle and Traffic Law to determine whether Wignall was physically fit to drive, the Commissioner revoked his license under another section because Wignall failed to pass a new road test.305 The majority, in effect, interpreted the Vehicle and Traffic Law as authorizing the Commissioner, upon receipt of notice of some default by a driver, to take a single action against the driver, such as requiring either a physical examination or a road test, but not both. By implication, the majority also ruled that the Commissioner had no power to demand anything from a licensed driver unless the driver gave cause for the demand or the statute explicitly authorized it. The dissent, in contrast, appears to have taken the view that a licensed driver could be reexam- ined whenever officials of the Motor Vehicle Bureau doubted his or her driving competence. 6 This holding, in effect, returns us full circle to process and procedure. It appears that whenever a conflict emerged between a claim of right, on the one hand, and the power of regulation, on the other, the central question for New York judges was whether the regulators and those who benefited from regulation had adhered to proper processes and procedures. If they had, efforts at regulation were upheld. Only if they had not, did constitutional rights triumph. It appears ultimately that while political theorists were able cleverly to adjust to the new realities of interest-group conflict, New York judges were not. They had the choice only of deferring to legislative policy judgments or of substituting their own judgment for that of the other branches of government. When they understood that those other branches represented the people at large in their efforts to attain the common good, it was easy to be deferential. But when they understood, as was often necessary in the postwar era of interest-group liberalism, that legislators represented only some special interests in their conflict with other interests, the judges were tempted to perceive at least some legislation as unfair and hence to strike it down as invalid. Only judges with extraordi- nary humility, who recognized that they could make no wiser choices than legislators, would continue to defer.

305. See Wignall, 103 N.E.2d at 731. 306. See id. at 732-33.

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V. EMINENT DOMAIN AND TAXATION Directional shifts parallel to those in the law of regulation also occurred after World War II in the law of eminent domain and taxation, as New York judges grew increasingly suspicious that these public powers, like the power of regulation, were being used to further special interests rather than the good of the public as a whole. As was true with regard to regulation, there was no sharp doctrinal break during or immediately after the war years. Nonetheless, as government used eminent domain more extensively and taxed more heavily, judges began to see more cases in which the use of government powers raised suspicions. In response, the judges had to consider whether to alter their emphasis in deciding the cases.

A. Eminent Domain The case in which the expanded use of eminent domain began was New York City Housing Authority v. Muller." The issue in Muller, on which there was "no case in this jurisdiction or elsewhere directly in point,"308 was whether the City of New York could condemn privately held land in order to construct "apartments to be rented to a class designated as 'persons of low income.' 39 Rental to such a limited class, it was argued, made the taking one for a private rather than public use. At the height of the New Deal, however, the Court of Appeals rejected the argument, observing that it "disregard[ed] the primary purpose of the legislation,"31 which was "not to benefit that class [i.e., the poor] or any class," but "to protect and safeguard the entire public from the menace of the slums."3' ' As the legislature had noted and the Court of Appeals reiterated, Slum areas are the breeding places of disease which take toll not only from denizens, but, by spread, from the inhabitants of the entire city and state. Juvenile delinquency, crime, and immorality are there born, find protection, and flourish. Enormous economic loss results directly from the necessary expenditure of public funds to maintain health and hospital services for afflicted slum dwellers and to war against crime

307. 1 N.E.2d 153 (N.Y. 1936). 308. Id. at 154. 309. Id. at 155. 310. Id. 311. Id. at 156.

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and immorality.... Concededly, these are matters of state concern, since they vitally affect the health, safety, and welfare of the public. Time and again, in familiar cases needing no citation, the use by the Legislature of the power of taxation and of the police power in dealing with the evils of the slums, has been upheld by the courts. Now, in continuation of a battle, which if not entirely lost, is far from won, the Legislature has resorted to the last of the trinity of sovereign powers by giving to a city agency the power of eminent domain.3"2 Thus public housing was not class legislation designed to benefit the poor by tapping into the pockets of the rich, but legislation designed for the benefit of the people as a whole. It was, in short, a public use. The years following World War II witnessed an enormous expansion in the Muller doctrine. Subsequent cases declared that either the provision of housing for those in need3 3 or the elimination of slums and blighted areas314 gave sufficient ground for use of the takings power, even if the property taken was later turned over to private enterprise for the construction of the intended new use.3"t As a result of these cases it became clear by the 1970s, when "the complexities of urban conditions became better understood," that properties subject to condemnation would include not only 'slums' as that term was formerly applied," but also areas suffering from, "among other things, economic underdevelopment and stagnation."3 6 It also became acceptable for the private entity that would ultimately obtain condemned land to act as

312. Id. at 154 (citation omitted). 313. See Chase v. City of Glen Cove, 227 N.Y.S.2d 131 (Sup. Ct. 1962) (rezoning of land for low income housing invalid if not followed by condemnation). A number of cases involved the state's temporary appropriation of apartments, especially in resort areas, during the housing shortages immediately following World War II. See In re Rego Park Houses, 102 N.Y.S.2d 510 (Sup. Ct. 1950); Weitzner v. Stichman, 64 N.Y.S.2d 40 (Sup. Ct.), rev'd, 64 N.Y.S.2d 50 (App. Div. 1946), affd, 72 N.E.2d 625 (N.Y. 1947); London v. State, 92 N.Y.S.2d 756 (Ct. Cl. 1949); see also Dormitory Auth. v. 59th St. & 10th Ave. Realty Corp., 308 N.Y.S.2d 160, 162-63 (Sup. Ct. 1970) (upholding power of Dormitory Authority to condemn land not only for collegiate housing but perhaps for classroom facilities as well). 314. See Cannata v. City of New York, 182 N.E.2d 395 (N.Y. 1962); Kaskel v. Impellitteri, 115 N.E.2d 659 (N.Y. 1953); Amsterdam Urban Renewal Agency v. Bohlke, 336 N.Y.S.2d 725 (App. Div. 1972); Klibanoffv. City of New York, 206 N.Y.S.2d 301 (Sup. Ct. 1960), aff'd, 232 N.Y.S.2d 391 (App. Div. 1962); In re Harlem Slum Clearance Project, 114 N.Y.S.2d 787 (Sup. Ct. 1952), afid, 122 N.Y.S.2d 623 (App. Div. 1953). 315. See Murray v. La Guardia, 52 N.E.2d 884, 888 (N.Y. 1943); In re First Amended S. Jamaica I, Urban Renewal Area, 421 N.Y.S.2d 20,20-21 (App. Div. 1979); In re Glen Cove Urban Renewal Agency, 375 N.Y.S.2d 261,264 (Sup. Ct. 1975); Wheeler v. Town of Islip, 273 N.Y.S.2d 399, 402 (Sup. Ct. 1966); Amalgamated Hous. Corp. v. Kelly, 82 N.Y.S.2d 577, 581 (Sup. Ct. 1948). 316. Yonkers Community Dev. Agency v. Morris, 335 N.E.2d 327, 330 (N.Y. 1975).

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"sponsor" for the project; indeed, in New York's leading case, the Otis Elevator Company had threatened to move to a new location "if suitable 317 land was not found for its needed modernization and expansion." The Court of Appeals found "nothing malevolent about that," nor was it troubled by the fact that Otis obtained "the condemned land for a price which [was] but a fraction of that paid" to the original "owners in condemnation. 318 The court, in short, had come to view the condemnation power as a sort of urban renewal subsidy, with the purpose of encouraging "the land clearing, the construction and other commitments the community desires ... where the cost of acquiring the land privately... would be sufficiently expensive or difficult to deter private entities. 5,319 The use of eminent domain to subsidize urban renewal was merely the beginning, however, of the judiciary's expansion of the power. Courts upheld condemnations to facilitate the construction of highways, 320 the elimination of billboards along highways,321 and the construction of parking facilities at business sites;31 to provide power sources and transmission facilities for utility companies; 32 3 to enable municipalities to gain control of rapid transit and bus facilities; 324 and to provide land

317. Id. at 331. 318. Id. 319. Id. 320. See In re Shore Rd., 317 N.Y.S.2d 577 (Sup. Ct. 1971); Bennett v. McMorran, 239 N.Y.S.2d 205 (Sup. Ct. 1963), aff'd, 250 N.Y.S.2d 949 (App. Div. 1964); Burda v. Palisades Interstate Park Comm'n, 120 N.Y.S.2d 801 (Sup. Ct. 1953), afd, 127 N.Y.S.2d 348 (App. Div. 1954); In re Residents of Summer Haven, 110 N.Y.S.2d 186 (Sup. Ct. 1952); see also Spadanuta v. Incorporated Village of Rockville Ctr., 239 N.Y.S.2d 598, 600 (Sup. Ct. 1963) (holding that village may condemn land for street widening owned by its mayor even though it may not contract to buy it), modified, 248 N.Y.S.2d 405 (App. Div. 1964), aftd, 205 N.E.2d 525 (N.Y. 1965); cf.In re Gardiners Ave., 136 N.Y.S.2d 166 (Sup. Ct. 1954) (concerning acquisition of drainage easement). 321. See Schulman v. People, 176 N.E.2d 817 (N.Y. 1961). 322. See In re Parking Fields 11 & 1 A, 217 N.Y.S.2d 827 (Sup. Ct.), aff'd, 222 N.Y.S.2d 413 (App. Div. 1961); Amsterdam Parking Auth. v. Trevett, 174 N.Y.S.2d 832 (Sup. Ct. 1958); cf.In re Incorporated Village of Hewlett Bay Park, 276 N.Y.S.2d 312 (App. Div. 1966) (concerning condemnation of property for the purpose of storing village work vehicles). 323. See Northville Dock Pipe Line Corp. v. Fanning, 237 N.E.2d 220 (N.Y. 1968); New York Tel. Co. v. Holden, 317 N.Y.S.2d 201 (App. Div. 1970); Iroquois Gas Corp. v. Gematt, 281 N.Y.S.2d 896 (App. Div. 1967), aft'd, 238 N.E.2d 916 (N.Y. 1968); Cuglar v. Power Auth., 163 N.Y.S.2d 902 (Sup. Ct.), aftd, 164 N.Y.S.2d 686 (App. Div.), affid, 147 N.E.2d 733 (N.Y. 1957); Home Gas Co. v. Kuruc, 132 N.Y.S.2d 316 (Broome County Ct. 1954); see also Hallock v. State, 300 N.E.2d 430 (N.Y. 1973) (concerning condemnation of gravel to be used as fill in a dam). 324. See New York State Sch. Bus Operators Ass'n v. County of Nassau, 350 N.E.2d 593 (N.Y. 1976); Fifth Ave. Coach Lines, Inc. v. City of New York, 183 N.E.2d 684 (N.Y. 1962); City of New Rochelle v. Westchester Elec. R.R., 29 N.Y.S.2d 805 (Sup. Ct. 1940), affid, 29 N.Y.S.2d 719 (App. Div. 1941), aff'd, 42 N.E.2d 23 (N.Y. 1942); Bronx Chamber of Commerce, Inc. v. Fullen, 21

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for future use of the United Nations. 25 Courts also upheld use of the takings power to provide condemnees with substitutes, in the form of either land or access, for what had been taken from them in the original condemnation.326 Other cases allowed use of the power of eminent domain to save Carnegie Hall from destruction,327 to help the Museum of Modem Art finance a new wing,328 and to assist in the rehabilitation of New York City's Commodore Hotel into the Grand Hyatt Hotel.329 With the decision of each of these cases, the link between government action and the public good became increasingly attenuated. The case that displayed the private character of the eminent domain power most clearly, though, was Courtesy Sandwich Shop, Inc. v. Port of New 330 York Authority. The Courtesy Sandwich Shop had been condemned by the Port Authority to assemble the land on which to build the World Trade Center which, it was said, was needed as an instrument for the centralization of international trade.331 Building two more skyscrapers to house the offices of international trading firms was not the real purpose of the Trade Center, however. The real purpose, as Judge Van Voorhis noted in dissent, was to obtain rental income that "could be utilized to offset the deficits of operating the Hudson & Manhattan Railroad," a subway to New Jersey over which the Port Authority had been asked to assume control.32 The Port Authority, "traditionally jealous of its solvency," was unwilling to run the railroad without the income from the Trade

N.Y.S.2d 474 (Sup. Ct. 1940); cf. County of Orange v. Metropolitan Transp. Auth., 337 N.Y.S.2d 178 (Sup. Ct. 1971) (concerning land acquisition for airport purposes), aff'd, 332 N.Y.S.2d 420 (App. Div. 1972); City of Albany v. Bol, 19 N.Y.S.2d 522 (Sup. Ct. 1940) (same). 325. See In re United Nations Dev. Dist., 339 N.Y.S.2d 292 (Sup. Ct. 1972). 326. See Tobin Packing Co. v. People, 345 N.Y.S.2d 717 (App. Div. 1973); Watkins v. Ughetta, 78 N.Y.S.2d 393 (App. Div.), aff'd, 80 N.E.2d 457 (N.Y. 1948); KJC Realty, Inc. v. State, 329 N.Y.S.2d 252 (Sup. Ct. 1972), affd, 295 N.E.2d 797 (N.Y. 1973). Cases were divided, however, on whether the condemnation power could be used simply to provide access to landlocked property. Compare City of Utica v. Damiano, 193 N.Y.S.2d 295 (Oneida County Ct. 1959) (taking allowed), with Saso v. State, 194 N.Y.S.2d 789 (Sup. Ct. 1959) (taking invalidated). 327. The ultimately successful effort to save Carnegie Hall resulted in complex litigation which came before the Court of Appeals on three separate occasions. See Keystone Assocs. v. State, 383 N.E.2d 560 (N.Y. 1978), rev'g 389 N.Y.S.2d 895 (App. Div. 1976); Keystone Assocs. v. State, 307 N.E.2d 254 (N.Y. 1973); Keystone Assocs. v. Moerdler, 224 N.E.2d 700 (N.Y. 1966). 328. See Hotel Dorset Co. v. Trust for Cultural Resources, 385 N.E.2d 1284 (N.Y. 1978). 329. See New York State Urban Dev. Corp. v. Vanderlex Merchandise Co., 413 N.Y.S.2d 982 (Sup. Ct. 1979). 330. 190 N.E.2d 402 (N.Y. 1963). 331. See id. at 404. 332. Id. at 409 (dissenting opinion).

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Center, which it expected would exceed land acquisition and construction costs by enough to provide the requisite subsidy.333 It thus planned to "meet its [railroad] deficits by expropriating the good will and condemning the real estate of private property owners instead of by general taxation.' A 6-1 majority on the Court of Appeals authorized it to 3 do SO. 11 This ability to use eminent domain takings to subsidize narrow interest groups like New Jersey commuters at the expense of the owners of condemned property depended, of course, upon the ability of condemnors to acquire greater value than the price which had to be paid to condemnees. Thus, it followed that by reducing the damages payable upon condemnation--the price paid to condemnees-judges could enhance eminent domain's subsidization effects. In the second half of the twentieth century, New York judges frequently pursued an ostensible policy that many government "interference[s] ...must be shouldered" without compensation as "inconveniences to be borne by the individual for the larger benefit of the community and the public in general,' 336 and that, when granted, "[d]amages should not be awarded twice, once for the direct taking and then again under the guise of consequential damages., 337 These judges decided many cases that limited the award of consequential damages and thereby achieved enhancement of eminent domain's subsidization effects.338

333. Id. at 410 (dissenting opinion). 334. Id. (dissenting opinion). 335. See id. at 411. 336. Cities Serv. Oil Co. v. City of New York, 154 N.E.2d 814, 817 (N.Y. 1958). 337. Mercury Aircrat Inc. v. State, 264 N.Y.S.2d 7, 8 (App. Div. 1965); see also In re Baden- Ormond Area Urban Renewal Project, 231 N.Y.S.2d 679, 681 (Sup. Ct. 1962) (observing that "the carrying out of the program of urban renewal greatly outweighs the preservation of the respondent's bargaining position"). 338. Although courts continued to adhere formally to the old rule that consequential damages for a change in grade of a highway were compensable when a statute authorized compensation, see Williams v. State, 309 N.Y.S.2d 795 (App. Div. 1970); Meloon Bronze Foundry, Inc. v. State, 176 N.Y.S.2d 452 (App. Div. 1958); Mellilo v. Kracke, 26 N.Y.S.2d 743 (App. Div. 1941); Bachmann v. New York Tunnel Auth., 47 N.Y.S.2d 767 (Sup. Ct. 1941); Smith v. State, 48 N.Y.S.2d 58 (Ct. Cl. 1944), in at least some instances they found diverse, often technical reasons to avoid granting damages even in situations where statutes made damages available. See In re Brooklyn-Queens Connecting Highway & Parks, 90 N.E.2d 183, 184 (N.Y. 1949) (condemnee gained a benefit); Benderson Dev. Co. v. State, 401 N.Y.S.2d 931, 933 (App. Div.) (right to established grade held pursuant to permit revocable at will), affd, 385 N.E.2d 1299 (N.Y. 1978); New York Cent. R.R. v. State, 129 N.Y.S.2d 121, 124 (App. Div. 1954) (railroad cannot recover for damage to own land due to grade crossing elimination), af'd, 127 N.E.2d 866 (N.Y. 1955); Dumala v. State, 340 N.Y.S.2d 515, 521 (Ct. Cl. 1973) (insignificant grade change at intersection of state and municipal roads due to change in state road for which there is no statutory liability); Aichino v. State, 154 N.Y.S.2d 627,

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Other rules also limited a condemnee's ability to recover full compensation. Thus, no recovery was allowed for personal property located on condemned land or for fixtures that were removed from the land,339 and moving expenses could be recovered only if specifically

630 (Ct. Cl. 1956) (road with new grade at different location than former road with established grade). Some cases, however, took a more generous approach. See 240 Scott, Inc. v. State, 221 N.E.2d 456 (N.Y. 1966); In re Public Beach, 41 N.E.2d 465 (N.Y. 1942). More significantly, judges developed the rule that mere inconvenience or circuity of access to land resulting from a change in the routing of a highway was noncompensable. See La Briola v. State, 328 N.E.2d 781, 782 (N.Y. 1975); Bopp v. State, 227 N.E.2d 37, 40 (N.Y. 1967); Coffey v. State, 53 N.E.2d 362, 363-64 (N.Y. 1944); Randall v. State, 427 N.Y.S.2d 324, 325 (App. Div. 1980); Laken Realty Corp. v. State, 289 N.Y.S.2d 570, 573 (App. Div. 1968); Blair v. State, 244 N.Y.S,2d 274, 275 (App. Div. 1963), affd, 204 N.E.2d 338 (N.Y. 1965); Jablowsky v. State, 44 N.Y.S.2d 549, 553 (App. Div. 1943), affd, 55 N.E.2d 517 (N.Y. 1944); Smith v. Gagliardi, 148 N.Y.S.2d 758, 760 (Sup. Ct. 1955), aft'd, 153 N.Y.S.2d 591 (App. Div. 1956); In re East 5th St., 146 N.Y.S.2d 794,800 (Sup. Ct. 1955); cf. Acme Theatres, Inc. v. State, 258 N.E.2d 912,915 (N.Y. 1970) (holding no compensation for loss of view of sign). Damages were appropriate, however, if access was completely destroyed or rendered impracticable. See Pollak v. State, 363 N.E.2d 342, 342 (N.Y. 1977); Kravec v. State, 360 N.E.2d 925, 926 (N.Y. 1976); Utilities & Indus. Corp. v. State, 247 N.E.2d 665, 666 (N.Y. 1969); Priestly v. State, 242 N.E.2d 827, 830 (N.Y. 1968); Baan v. State, 427 N.Y.S.2d 532, 534 (App. Div. 1980); In re C.R. 99, Woodside Ave., 405 N.Y.S.2d 773, 775 (App. Div. 1978). On the other hand, judges regularly applied the rule barring damages to cases where the grade of a main highway was changed and a landowner was left with access only to a service road or other secondary road. See Baldwin-Hall Co. v. State, 212 N.E.2d 899, 900 (N.Y. 1965); Selig v. State, 176 N.E.2d 59, 62 (N.Y. 1961); National Biscuit Co. v. State, 219 N.Y.S.2d 905, 906 (App. Div. 1961), aff'd, 181 N.E.2d 457 (N.Y. 1962); A.E. Nettleton Co. v. State, 202 N.Y.S.2d 102, 104 (App. Div. 1960). In contrast, the courts were willing to award damages for loss of quiet, see Dennison v. State, 239 N.E.2d 708, 710 (N.Y. 1968); Valicenti v. State, 312 N.Y.S.2d 93, 95 (App. Div. 1970); New York Cent. R.R v. Harrison, 74 N.Y.S.2d 333, 343 (App. Div. 1947); Fleetwood Synagogue, Inc. v. State, 302 N.Y.S.2d 898, 903 (Ct. Cl. 1969), and for removal of ornamental trees, at least in cases where a physical taking of land had occurred. See Moulthrop v. State, 84 N.Y.S.2d 784, 785 (Ct. CI. 1948); Ribak v. State, 38 N.Y.S.2d 869, 873 (Ct. Cl. 1942); cf. Lucas v. State, 353 N.Y.S.2d 831, 833 (App. Div. 1974) (holding that abutting property owners receive no compensation for tree removal from preexisting highway right-of-way); Broome County v. McKune, 45 N.Y.S.2d 71, 73 (App. Div. 1943) (holding that abutting property owners receive no compensation if tree removal from highway property is necessary). 339. See Great Atl. & Pac. Tea Co. v. State, 238 N.E.2d 705, 714 (N.Y. 1968); Marraro v. State, 189 N.E.2d 606, 609 (N.Y. 1963); Strong v. State, 328 N.Y.S.2d 913, 916 (App. Div. 1972); City of New York v. Atlantic Terminal Renewal, 338 N.Y.S.2d 504, 512-14 (Sup. Ct. 1972); In re Site for City-Aided Low-Rent Hous. Project, 89 N.Y.S.2d 855, 859 (Sup. Ct. 1949); Rossi v. State, 223 N.Y.S.2d 139, 146 (Ct. Cl. 1961), aff'd, 246 N.Y.S.2d 1020 (App. Div. 1964), and affd sub nom. Great At. & Pac. Tea Co. v. State, 246 N.Y.S.2d 1020 (App. Div. 1964). But see Glen & Mohawk Milk Ass'n v. State, 143 N.Y.S.2d 125, 126-27 (Ct. Cl. 1955) (awarding compensation for the difference between value of fixtures when situated on condemned land and value after removed). Some courts held, however, that fixtures were compensable, see In re County of Suffolk, 392 N.E.2d 1236, 1240 (N.Y. 1979); Cooney Bros. v. State, 248 N.E.2d 585, 587-88 (N.Y. 1969); Rose

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authorized by statute.340 Nor could recovery be had for profits lost in the dislocations of a taking3"4' or for lost parking facilities, if they could be obtained in another location. 42 Only minimal interest was awarded in eminent domain cases,343 and the rule that "value for condemnation purposes is value to the owner and not value to the taker" 344 - a rule that enabled the taker to appropriate the profits of any condemnation project without having to pay for them-was made even more unfavor- able to condemnees by one court's holding that a taker need not pay for any speculative "opportunities the owner may lose." 345

v. State, 246 N.E.2d 735, 740 (N.Y. 1969); In re Bruckner Expressway, 322 N.Y.S.2d 468, 469 (App. Div. 1971); General Ice Cream Corp. v. State, 109 N.Y.S.2d 108, 108 (App. Div. 1952); Atlantic Terminal Renewal, 338 N.Y.S.2d at 508-12, unless they had no value. See New Rochelle Water Co. v. State, 177 N.E.2d 771,773 (N.Y. 1961); In re Gillen Place, 106 N.E.2d 897, 902 (N.Y. 1952). 340. See Tarrant Mfg. Co. v. State, 390 N.Y.S.2d 658, 659 (App. Div. 1977); Katz v. State, 198 N.Y.S.2d 463, 464-65 (App. Div. 1960); City of Buffalo v. Mollenberg-Betz Mach. Co., 279 N.Y.S.2d 842, 849-50 (Sup. Ct. 1966); Albany Country Club v. State, 235 N.Y.S.2d 684, 694-95 (Ct. Cl. 1962), modified, 241 N.Y.S.2d 604 (App. Div.), aft'd, 196 N.E.2d 62 (N.Y. 1963); Bodnar Indus. v. State, 187 N.Y.S.2d 359, 362-63 (Ct. Cl. 1959). But cf. In re City of New York, 348 N.E.2d 878, 879 (N.Y. 1976) (upholding compensation for expense incurred by relocating fixtures). 341. See Troy Hous. Auth. v. Clemente Bros., 164 N.Y.S.2d 555, 556 (App. Div. 1957); Schreibman v. State, 223 N.Y.S.2d 670, 674 (Ct. Cl. 1961). 342. See City of New York v. Allied Stores, Inc., 380 N.E.2d 158, 159 (N.Y. 1978). But see Mil-Pine Plaza, Inc. v. State, 370 N.Y.S.2d 701,702 (App. Div. 1975) (holding that a loss of parking spaces can be an element of consequential damages). 343. See Rochester Carting Co. v. Levitt, 326 N.E.2d 808, 810 (N.Y. 1975); La Porte v. State, 159 N.E.2d 540, 542 (N.Y. 1959); In re Hudson Tubes, 271 N.Y.S.2d 95, 97-99 (Sup. Ct.), modified sub nom. Port Auth. Trans-Hudson Corp. v. Hudson & Manhattan Corp., 276 N.Y.S.2d 283 (App. Div. 1966), modified sub nom. Port Auth. Trans-Hudson Corp. v. Hudson Rapid Tubes Corp., 231 N.E.2d 734 (N.Y. 1967); In re Lincoln Square Slum Clearance Project, 194 N.Y.S.2d 253, 256 (Sup. Ct. 1959), modified, 222 N.Y.S.2d 786 (App. Div. 1961), affd, 190 N.E.2d 423 (N.Y. 1963), and aff-d, 208 N.E.2d 172 (N.Y. 1965); Cooper v. State, 48 N.Y.S.2d 212, 216 (Ct. Cl. 1944). 344. Home Gas Co. v. Miles, 358 N.Y.S.2d 846, 852 (Sup. Ct. 1974), modified, 364 N.Y.S.2d 213 (App. Div. 1975); accord Thomas v. State, 192 N.Y.S.2d 124, 129 (Ct. Cl. 1959). 345. In re Westchester County, 127 N.Y.S.2d 24, 32 (Sup. Ct. 1953). Other anti-compensation decisions were simply weird. Some upheld statutes permitting the state or its agencies to abandon condemnation proceedings after they had seized the land but before they had parted with the compensation. See Terrace Hotel Co. v. State, 227 N.E.2d 846, 850 (N.Y. 1967); Lafayette Hotel Co. v. County of Erie, 205 N.Y.S.2d 626, 629, 631 (Sup. Ct. 1960). Another held that the state, pursuant to an unconstitutional statute, had acquired an unusually wide right of way for a highway that had been laid out 150 years earlier, even though the entire width had never been used. As a result, the state did not need to condemn new land when it sought to widen the highway. See Schillawski v. State, 173 N.E.2d 793, 795 (N.Y. 1961). Oddest of all was In re Third Avenue RailroadBridge, 270 N.Y.S.2d 791 (Sup. Ct. 1965), aff'd, 234 N.E.2d 445 (N.Y. 1967), which held that property owners along Third Avenue in Manhattan, who had received damage awards for the obstruction of their rights to light, air, and access when the elevated railway had been constructed during the late nineteenth century, had to repay those awards when the el was tom down in the 1950s.

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It was a rare judge who by the 1970s approached any takings case from the perspective that "justice demands that the despoiler, whether individual, corporation, or government, be compelled to pay for that which he spoils. 346 A perspective emphasizing justice was possible only in an area, like protection of the environment, that had "become a national priority.' 34 7 At least on occasion, however, it

346. Nature Conservancy, Inc. v. State, 325 N.Y.S.2d 540, 544 (Ct. Cl. 1971), rev'd on other grounds, 341 N.Y.S.2d 38 (App. Div. 1973). 347. Id. In the absence of such a priority, however, judges dealing with condemnations strove to keep damages awards low as they focused, not on justice, but on the gains which exercise of public power would bring to the interests favored by the legislature. Thus judges facilitated eminent domain takings by relaxing the established rule that in the absence of specific legislative authorization one holder of the power of eminent domain could not condemn the property of another entity already putting its land to a public use. See Board of Educ. v. Pace College, 276 N.Y.S.2d 162, 164-65 (App. Div. 1966), rev'g 271 N.Y.S.2d 773 (Sup. Ct. 1966); In re Incorporated Village of Valley Stream, 316 N.Y.S.2d 25, 27-28 (Sup. Ct. 1970); City of Mount Vernon v. East Hudson Parkway Auth., 257 N.Y.S.2d 51, 58-59 (Sup. Ct.), affd, 259 N.Y.S.2d 167 (App. Div. 1965); Stuyvesant Hous.Corp. v. Stuyvesant Town Corp., 51 N.Y.S.2d 19, (Sup. Ct. 1944). But cf New York Tel. Co. v. Town of N. Hempstead, 363 N.E.2d 694, 697 (N.Y. 1977) (holding that town lacked statutory authority to engage in attempted condemnation). The new, relaxed rule, as explained by one judge, was that "[w]hen one condemning authority [sought] to appropriate land already held by another, the Court, of necessity, [had to] resolve the question of competing priorities." City of Buffalo v. Iroquois Gas Corp., 332 N.Y.S.2d 925, 927 (Sup. Ct. 1972). Although the courts could not "resolve all of the complex problems arising from the existence of separate... political subdivisions where natural forces [were] such as to require them to collaborate," they could no longer be bound by the old fixed rule but instead could use their "equitable powers" to sculpt relief "on reasonable and equitable conditions." Buffalo Sewer Auth. v. Town of Cheektowaga, 228 N.E.2d 386, 390 (N.Y. 1967). The same was true where property owners sought to obstruct the condemnation power in reliance on some right created by regulatory legislation, such as the right of a tenant under rent control to renewal of its lease. Not surprisingly, judges invariably allowed condemnations to go forward. See In re Brooklyn Battery Tunnel Plaza, 62 N.Y.S.2d 303, 308 (Sup. Ct.), affd, 64 N.Y.S.2d 175 (App. Div. 1946); City Sch. Dist. v. Cohen, 132 N.Y.S.2d 365, 367 (Saratoga County Ct. 1954), aff'd, 137 N.Y.S.2d 695 (App. Div. 1955); cf George F. Weaver Sons Co. v. City of Utica, 92 N.Y.S.2d 372, 377 (Sup. Ct. 1949) (holding that the city may condemn less than the full amount authorized by bankruptcy court). But cf Society of the New York Hosp. v. Johnson, 154 N.E.2d 550, 552-53 (N.Y. 1958) (upholding express legislative grant of immunity from condemnation until expressly repealed). The courts also aided the exercise of the eminent domain power by holding that no compensation at all had to be paid when land already being put to a public use was taken for a new use. See City of Albany v. State, 250 N.Y.S.2d 300, 302 (App. Div. 1964), aff'd, 207 N.E.2d 864 (N.Y. 1965); City of New Rochelle v. State, 241 N.Y.S.2d 272, 273 (App. Div. 1963), aff'd, 198 N.E.2d 41 (N.Y. 1964); City of Albany v. State, 335 N.Y.S.2d 975, 981-82 (Ct. Cl. 1972); City of Schenectady v. State, 162 N.Y.S.2d 262, 265-66 (Ct. Cl. 1957); City of Little Falls v. State, 37 N.Y.S.2d 463, 465-66 (Ct. Cl. 1942), rev'd on other grounds, 41 N.Y.S.2d 882 (App. Div.), afJ'd, 52 N.E.2d 963 (N.Y. 1943); cf Consolidated Edison Co. v. Lindsay, 248 N.E.2d 150, 153-54 (N.Y. 1969) (holding that the city need not compensate utility when condemnation forces relocation of pipes and conduits); Niagara, Lockport & Ontario Power Corp. v. State, 62 N.Y.S.2d 323, 328 (Ct.

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Cl. 1946) (allowing minimal compensation in comparable factual setting). Compensation was required, however, for the taking of land held in a proprietary capacity. See Town of Peru v. State, 343 N.Y.S.2d 899, 901 (App. Div. 1973). Pursuant to legislation reversing the judge-made rule, cases in the 1970s granted compensation when the state took municipal property and devoted it to a different public use than the one to which the municipality had put it. See City of Yonkers v. State, 353 N.E.2d 829, 830-32 (N.Y. 1976); City of Albany v. State, 270 N.E.2d 705, 708-09 (N.Y. 1971); City of New York v. State, 385 N.Y.S.2d 931, 932-33 (Ct. Cl. 1976). Yet another device by which the New York courts systematically aided eminent domain takers was their refusal to create a cause of action in damages for inverse condemnation. In particular, the courts held that the mere announcement that a condemnation would occur in the future, even when it resulted in substantial damage in the form of condemnation blight, was not compensable; in the judges' view, no taking occurred until the condemnor formally assumed possession and control of the property. See Jensen v. City of New York, 369 N.E.2d 1179, 1180 (N.Y. 1977); City of Buffalo v. J.W. Clement Co., 269 N.E.2d 895, 903-04 (N.Y. 1971); New York Tel. Co. v. State, 412 N.Y.S.2d 223,224-25 (App. Div. 1979); O'Brien v. City of Syracuse, 388 N.Y.S.2d 866, 869 (App. Div. 1976); Fisher v. City of Syracuse, 361 N.Y.S.2d 773, 774 (App. Div. 1974); Niagara Frontier Bldg. Corp. v. State, 305 N.Y.S.2d 549, 552 (App. Div. 1969), affd, 269 N.E.2d 912 (N.Y. 1971); In re Incorporated Village of Lynbrook, 348 N.Y.S.2d 115, 119 (Sup. Ct. 1973); Cinco v. City of New York, 296 N.Y.S.2d 26, 28-30 (Sup. Ct. 1968). For refusals to accept the doctrine of inverse condemnation in other contexts, see Mickel v. State,430 N.Y.S.2d 741,742 (App. Div. 1980), affd, 429 N.E.2d 423 (N.Y. 1981); King v. Power Authority, 353 N.Y.S.2d 547, 549-50 (App. Div. 1974), aff'd, 343 N.E.2d 767 (N.Y. 1975); and FredF. French Investing Co. v. City of New York, 352 N.Y.S.2d 762, 767-68 (Sup. Ct. 1973). A landowner's only remedy in the case of government action, absent a formal taking that deprived it of its property was injunctive or declaratory relief against the action. See St. Aubin v. Biggane, 381 N.Y.S.2d 533, 534-35 (App. Div. 1976); Oakwood Island Yacht Club, Inc. v. City of New Rochelle, 298 N.Y.S.2d 807, 809-10 (Sup. Ct. 1969); Ledogar v. City of New York, 266 N.Y.S.2d 629, 632 (Sup. Ct. 1966); R.B.I. Enters. v. City of Rochester, 262 N.Y.S.2d 939, 946 (Sup. Ct. 1965); 59 Front St. Realty Corp. v. Klaess, 160 N.Y.S.2d 265, 267 (Sup. Ct. 1957). But see Charles v. Diamond, 366 N.Y.S.2d 921, 925 (App. Div. 1975) (permitting a damage claim to proceed to trial when previous injunctive relief had proved ineffectual), modified, 360 N.E.2d 1295 (N.Y. 1977); Lucas v. City of Yonkers, 260 N.Y.S.2d 335, 338 (Sup. Ct. 1965) (awarding damages to plaintiff for tearing down of building deemed dangerous without giving plaintiff opportunity to rebut city's allegation). Individual cases also aided government entities and some private interests at the expense of other interests by holding, for example, that competition by a government-operated utility did not constitute a taking of a privately owned utility, see Jamaica Water Supply Co. v. City of New York, 242 N.Y.S.2d 275,280 (Sup. Ct. 1963), afd,270 N.Y.S.2d 975 (App. Div. 1966), aff'd, 228 N.E.2d 819 (N.Y. 1967); cf Ocean Beach Ferry Corp. v. Incorporated Village of Ocean Beach, 92 N.Y.S.2d 275, 280-81 (Sup. Ct. 1949) (dictum) (holding that village on island had power to operate ferry), aff'd, 94 N.Y.S.2d 826 (App. Div. 1950), and that a condemnee need not receive any notice of condemnation of his property. See De Matteis v. Town of Hempstead, 145 N.Y.S.2d 256,257 (App. Div. 1955). 348. One other area where courts were frequently generous in awarding damages involved the taking of riparian rights. See National Cellulose Corp. v. State, 55 N.E.2d 492, 496 (N.Y. 1944); In re Ford, 313 N.Y.S.2d 42, 47 (App. Div. 1970), aff'd, 273 N.E.2d 143 (N.Y. 1971); Keinz v. State, 156 N.Y.S.2d 505, 507-08 (App. Div. 1956); In re East River Drive, 35 N.Y.S.2d 990, 1000 (App. Div. 1942), aff'd, 84 N.E.2d 148 (N.Y. 1949); Crance v. State, 128 N.Y.S.2d 479, 480-81 (Ct. Cl.),

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B. Taxation No fundamental changes occurred in formal doctrines of tax law during the second half of the twentieth century. But the enormous enhancement of government's power and its increased use for the benefit of special interests, the effects of which we have already witnessed in the law of regulation and eminent domain, proved transforming in the area of real estate taxation as well. The key transformation-one which typified the new uses of government power after World War II-occurred when the legislature began to grant tax exemptions, which had long been available to government agencies and charities, to profit-making entities organized for public benefit purposes. This new approach to tax exemptions had emerged initially in 1920 when the legislature adopted the Emergency Housing Law, which allowed the City of New York to remove from its assessment rolls newly constructed apartment buildings used exclusively for dwelling purposes." 9 The Court of Appeals soon afterwards upheld the constitutionality of the legislation in 1923. 310 This "so-called 'housing legislation,"' which contained "correlative provisions" granting "tax exemption" and imposing "control of rent,' 351 was designed to help the free market alleviate a perceived housing shortage in New York City in the aftermath of World War I and to regulate the housing market in the interim. Although the Emergency Housing Law expired in 1925 and apartments constructed after that date did not receive tax exemption,352 the courts continued to sustain other legislative subsidies for the construction of housing. For example, the Court of Appeals in 1930

modified, 136 N.Y.S.2d 156 (App. Div. 1954), rev'd, 128 N.E.2d 324 (N.Y. 1955). But see Marine Air Ways, Inc. v. State, 104 N.Y.S.2d 964, 966-67 (Ct. CI. 1951), aFfd, 116 N.Y.S.2d 778 (App. Div. 1952). 349. See Act of September 27, 1920, ch. 949, 1920 N.Y. Laws 2487, 2487 (repealed 1959). 350. See Edward J.Moberg Co. v. Mohr, 142 N.E. 280, 280 (N.Y. 1923) (mem.); Hermitage Co. v. Goldfogle, 142 N.E. 281, 281 (N.Y. 1923) (mern.). To obtain exemption, buildings had to be completed within specified time periods, see Sikora Realty Corp. v. City of New York, 260 N.Y.S. 803, 804-05 (App. Div. 1932), rev'd on other grounds, 186 N.E. 796 (N.Y. 1933), and not be used for any business purpose above the first floor. See People ex rel. 300 Park Ave., Inc. v. Goldfogle, 233 N.Y.S. 102, 105 (App. Div. 1929). 351. People ex rel. XVaitt Operating Co. v. Goldfogle, 201 N.Y.S. 262, 264 (Sup. Ct. 1923), affid, 203 N.Y.S. 947 (App. Div.), af'd, 147 N.E. 178 (N.Y. 1924). 352. See Act of April 1, 1924, ch. 87, 1924 N.Y. Laws 125 (extending tax exempt status to apartment houses that commenced construction by April 1, 1925) (repealed 1959).

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sustained as "salutary" legislation that exempted buildings in the course of construction from assessment.353 Lower courts similarly sustained "beneficial legislation," granting exemptions to private limited dividend housing corporations,3" and a statute adopted during the Depres- sion,355 as "part of a complete plan to give to distressed home owners an opportunity to save their homes from foreclosure."3 6 This plan exempted refinancings through the Federal Home Owners' Loan Corporation from the state's mortgage recording tax.357 Meanwhile, the Home Owners' Loan Act was sustained by federal judges as legislation of the "character ... enacted by Congress over a span of years" and thus as an "act in furtherance of general or national as distinguished from local purposes."3'58 One state trial court sustained a tax exemption for a corporation that constructed an apartment building to furnish subsidized lodging and food to unmarried working women on the ground that no one could "close their eyes to conditions which every member of the community must know exists, nor to considerations which appeal to every right-thinking citizen."359 On this basis, the state judge took "judicial notice[] that there are many working women whose moral and physical well-being will be improved through an opportunity to obtain 36 food and lodging in proper surroundings." ' Even more important were the increases in taxes that occurred when government's assumption of increasing societal obligations demanded increased revenues. With the increase of taxes, the subsidization effect of tax exemptions for special interests likewise grew. As the legislature, in turn, granted a broader range of exemptions, the judiciary uniformly sustained the grants. The end result was that an issue that had been

353. People ex rel. 1170 Fifth Ave. Corp. v. Goldfogle, 173 N.E. 685, 685 (N.Y. 1930). 354. People ex rel. Academy Hous. Corp. v. Miller, 296 N.Y.S. 2, 4 (Sup. Ct. 1937); accord Mars Realty Corp. v. Sexton, 253 N.Y.S. 15, 21 (Sup. Ct. 1931). 355. See Home Owners' Loan Act of 1933, Pub. L. No. 73-43, 48 Stat. 128 (1933) (codified as amended at 12 U.S.C. § 1467a (1994)). 356. Home Owners' Loan Corp. v. Barone, 298 N.Y.S. 531, 533 (Sup. Ct. 1937). But cf People ex rel.Westbrook-Buffalo, Inc. v. State Tax Comm'n, 15 N.Y.S.2d 525, 526 (App. Div. 1939) (holding that legislative tax exemption was not retroactive), affd, 27 N.E.2d 278 (N.Y. 1940); Gramott Corp. v. Graves, 7 N.Y.S.2d 457, 458 (App. Div. 1938) (same), af/d, 20 N.E.2d 27 (N.Y. 1939). 357. For a case sustaining the constitutionality of the tax, see Franklin Society for Home Building & Savings v. Bennett, 14 N.Y.S.2d 49, 50 (App. Div.), affd, 24 N.E.2d 854 (N.Y. 1939). 358. United States v. Kay, 89 F.2d 19, 22 (2d Cir. 1937), vacated on other grounds, 303 U.S. 1 (1938). 359. Webster Apartments v. City of New York, 193 N.Y.S. 650, 651 (Sup. Ct. 1922), aff'd, 200 N.Y.S. 956 (App. Div. 1923). 360. Id.

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unresolved in 1920-whether government could use its fiscal power to compensate citizens for harm that it had not imposed-was dispositively resolved by 1980, by which time the government's power to compensate anyone for anything had become unquestioned. Williams v. Walsh36 made this clear as early as 1942. The case arose when Henry Williams, a New York City fireman, enlisted in the marines in January 1942 and through his attorney-in-fact brought suit for the difference between his marine pay and his higher fire-department salary, in reliance on state legislation providing for payment of such differential to all public employees absent in military service.362 Although the gratuity at issue in the Williams case would ultimately prove massive in comparison with the World War I veterans' bonus, held unconstitutional in the 1921 Westchester Bank case, 363 a unanimous Court of Appeals had no difficulty sustaining it. In the language of Chief Judge Irving Lehman, [T]he grant of special benefits and privileges... involved no arbitrary discrimination. There was reasonable ground for the determination by the Legislature that the State would receive adequate benefit from such a grant to all within the class defined by the Legislature ...."A class [might] lawfully be restricted, if the lines defining the restriction [were] not arbitrary altogether ...." The court there was considering the validity of limitations upon freedom of action imposed by the Legislature under the police power. The same rule applie[d], with greater force, where there has been a grant of special benefit.. ..64 Thereafter, the constitutionality of civil service preferences and bonuses for veterans was unquestioned.365 Williams made it clear, in short, that the legislature possessed plenary power to redistribute wealth among special interests through taxation and welfare subsidies. As one judge observed, it was "inherent in the normal exercise of the power to tax" for government "to select the

361. 43 N.E.2d 498 (N.Y. 1942). 362. See id. at 499. 363. People v. Westchester County Nat'l Bank, 132 N.E. 241, 247 (N.Y. 1921) (invalidating statute granting bonus to veterans on grounds that it was merely a gratuity and thereby unconstitutional). 364. Williams, 43 N.E.2d at 501 (quoting People v. Teuscher, 162 N.E. 484,485 (N.Y. 1928)). 365. See August v. Bronstein, 369 F. Supp. 190, 192 (S.D.N.Y.), affd, 417 U.S. 901 (1974); Kohn v. Bates, 90 N.Y.S.2d 391, 393 (App. Div. 1949) (dictum), affd, 92 N.E.2d 60 (N.Y. 1950). But when the state constitution itself specified limits on benefits such as civil service preferences, the legislature could not exceed them. See Meenagh v. Dewey, 36 N.E.2d 211 (N.Y. 1941).

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subjects of taxation and to grant exemptions. The "inequalities which result[ed]," in turn, "infringe[d] no constitutional limitation. 367 Even so, familiar limitations to the granting of exemptions continued to be proclaimed. Thus it was declared that any "exemption from taxation 'must clearly appear, and the party claiming it must be able to point to '36 some provision of law plainly giving the exemption.' ' Ambiguous language would "be 'construed against the taxpayer', although" it would not be interpreted in "so narrow and literal [a fashion] as to defeat its settled purpose., 369 Also reiterated were the general rules that property held by an agency of the state for public,37 though not private purposes, 371 was immune from taxation, and that property of the United States or of instrumentalities thereof was similarly immune 372 unless Congress consented to the taxation.3 73 As entities with complex relationships to the federal government proliferated during and after World War II, however, -there was a growing trend not to treat them as federal

366. Garlin v. Murphy, 273 N.Y.S.2d 374, 378 (Sup. Ct. 1966). 367. Id. 368. Grace v. New York State Tax Comm'n, 332 N.E.2d 886, 889 (N.Y. 1975) (quoting People ex rel. Say. Bank of New London v. Coleman, 31 N.E. 1022, 1022 (N.Y. 1892)). 369. Id. 370. See Board of Coop. Educ. Servs. v. Buckley, 207 N.E.2d 528, 528 (N.Y. 1965); Bush Terminal Co. v. City of New York, 26 N.E.2d 269, 274 (N.Y. 1940); County of Erie v. Kerr, 373 N.Y.S.2d 913, 918 (App. Div. 1975); State Ins. Fund v. Boyland, 125 N.Y.S.2d 169, 173 (App. Div. 1953), affd, 133 N.E.2d 457 (N.Y. 1956); Dubbs v. Board of Assessment Review, 367 N.Y.S.2d 898, 907 (Sup. Ct. 1975); County ofWestchester v. Town of Harrison, 114 N.Y.S.2d 492,495 (Sup. Ct. 1951). But see DuBois v. Town Bd., 324 N.E.2d 153, 154 (N.Y. 1974) (upholding legislative power to give one government agency authority to tax property held by another). 371. See Town of Harrison v. County of Westchester, 196 N.E.2d 240, 244 (N.Y. 1963); Chemung County v. Hartman, 265 N.Y.S.2d 458, 460 (App. Div. 1965); Oak Island Beach Ass'n v. Mascari, 261 N.Y.S.2d 982, 985 (Sup. Ct. 1965), aff'd sub nom. West Gilgo Beach Ass'n v. Mascari, 267 N.Y.S.2d 192 (App. Div.), aff'd, 222 N.E.2d 735 (N.Y. 1966); Union Free Sch. Dist. No. 11 v. Steuben County, 33 N.Y.S.2d 854, 856 (Sup. Ct.), aft'd, 36 N.Y.S.2d 440 (App. Div. 1942); cf.Board of Educ. v. Board of Assessors, 389 N.Y.S.2d 27, 29 (App. Div. 1976) (stating that property obtained for future public use was taxable even though still occupied by private tenant); Erie County Water Auth. v. County of Erie, 364 N.Y.S.2d 626, 632 (App. Div. 1975) (same). 372. See ACF Indus. v. Board of Assessors, 214 N.Y.S.2d 915, 916 (App. Div. 1961), affd, 197 N.E.2d 784 (N.Y. 1964); cf.Roman Catholic Diocese v. City of New York, 238 N.Y.S.2d 889, 891-92 (Sup. Ct. 1963) (ruling that land used for military purposes by United States without payment of rent was exempt from taxation). The immunity of the United States was extended to the United Nations, see Curran v. City of New York, 77 N.Y.S.2d 206, 209 (Sup. Ct. 1947), aff'd, 88 N.Y.S.2d 924 (App. Div. 1949), and to foreign embassies accredited thereto. See Republic of Argentina v. City of New York, 250 N.E.2d 698, 701 (N.Y. 1969). 373. See Fort Hamilton Manor, Inc. v. Boyland, 149 N.E.2d 856, 857 (N.Y. 1958); In re Bank of Manhattan Co., 58 N.E.2d 713, 714 (N.Y. 1944); Mitchel Manor No. I Corp. v. Board of Assessors, 199 N.Y.S.2d 638, 639 (App. Div. 1960).

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instrumentalities and "'to reject immunizing these private parties from nondiscriminatory state taxes as a matter of constitutional law,"'374 especially when the federal government itself failed to assert a claim of immunity.375 The reason for the trend, as explained by Kenneth Keating, a Court of Appeals judge who had also served New York as a United States Senator,376 was "that the problems which face State and local governments in meeting their responsibilities in our complex society require the expenditure of vast amounts of money."3'77 To circumscribe their power of taxation "could seriously unbalance the fiscal affairs of local tax authorities, particularly in times of distress," and leave them unable to provide for "new and increased burdens" in the nature of "necessary community services" that federal programs had helped to 378 create. Among charities, not-for-profit private schools and colleges became favored beneficiaries of tax exemptions. 79 Their property received exemption not only when used in traditional teaching activities but also when used for research,380 for a nursery school,38' for a school of continuing education, 32 or for lease to another educational institu-

374. In re S.S. Silberblatt, Inc., 180 N.Y.S.2d 210,215 (App. Div. 1958) (quoting United States v. City of Detroit, 355 U.S. 466, 474 (1958)), af'd sub nom. S.S. Silberblatt v. Tax Comm'n, 159 N.E.2d 195 (N.Y. 1959). 375. See Simonelli v. City of New York, 95 N.Y.S.2d 316, 318 (App. Div.), aff'd, 95 N.E.2d 626 (N.Y. 1950); see also Fallica v. Town of Brookhaven, 419 N.Y.S.2d 102, 105 (App. Div. 1979) (holding town building leased to Internal Revenue Service taxable), modified, 417 N.E.2d 1248 (N.Y. 1980). 376. See WHO'S WHO IN AMERICA 1659 (38th ed. 1974). 377. Liberty Nat'l Bank & Trust Co. v. Buscaglia, 235 N.E.2d 101, 108-09 (N.Y. 1967). 378. Dime Say. Bank v. Beecher, 260 N.Y.S.2d 500, 505 (App. Div. 1965), affd sub nom. Jamaica Sav. Bank v. Williams, 221 N.E.2d 561 (N.Y. 1966). 379. Schools conducted for profit, however, were not tax exempt. See Semple Sch. for Girls v. Boyland, 126 N.E.2d 294, 298 (N.Y. 1955); see also Hewitt v. Bates, 78 N.E.2d 593, 595 (N.Y. 1948) (holding that teachers conducting school in nature of business were not exempt from unincorporated business tax). 380. See Trustees of Columbia Univ. v. Town of Orangetown, 402 N.Y.S.2d 899, 903 (Sup. Ct. 1976), aff'd, 399 N.Y.S.2d 708 (App. Div. 1977); People ex rel. Johnson O'Connor Research Found., Inc. v. Tax Comm'rs, 96 N.Y.S.2d 36, 37 (Sup. Ct. 1950). 381. See Croton Community Nursery Sch. v. Coulter, 127 N.Y.S.2d 416 (App. Div. 1954). The appellate division reversed the trial court decision in this case, which understood that nursery schools were not educational but were merely "of distinct advantage to the individual parents and promote[d] their personal convenience." Croton Community Nursery Sch. v. Coulter, 121 N.Y.S.2d 755, 758 (Sup. Ct. 1953). 382. See American Management Ass'ns v. Assessor of Madison, 406 N.Y.S.2d 583, 585 (App. Div. 1978), aff'd, 392 N.E.2d 571 (N.Y. 1979); cf. Rudolf Steiner Educ. & Farming Ass'n v. Brennan, 410 N.Y.S.2d 404,406 (App. Div. 1978) (allowing exemption for entity teaching practical farming skills).

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tion.3" 3 One college even obtained a tax exemption for vacant land which it had no intention of using for educational purposes and which a prior case had held subject to taxation."' When colleges in the aftermath of World War II purchased formerly private dwelling houses, not "as a matter of business acumen" or "convenience to... its students, faculty and staff' but out of necessity "in direct furtherance of an expanded program in higher education," those dwellings became tax exempt when used initially to house students3"5 and later to house faculty.38 6 Even fraternity houses were granted tax exempt status when they were completely under university control, 387 although not otherwise.388 Likewise, a cafeteria operated by a profit-making corporation but owned by a college and open only to the college's students, faculty, and staff would receive a tax exemption, 3s9 as would recreational facilities used primarily by the same sorts of individuals. 30 Although judges were "mindful of ... the policy of having all realty bear an equal share of the cost of public services..., as well as the pressing need for tax money,' 391 they clearly placed more weight on the policy "'of

383. See Masters Sch. v. Town of Greenburgh, 140 N.Y.S.2d 399, 402 (Sup. Ct. 1955). 384. See In re Ladycliff College, 41 N.Y.S.2d 149, 150 (App. Div. 1943) (effectively reversing People ex rel. Missionary Sisters of Third Order of St. Francis v. Reilly, 83 N.Y.S. 39 (App, Div. 1903), and affd, 70 N.E. 1107 (N.Y. 1904), aff'd, 56 N.E.2d 729 (N.Y. 1944)). 385. See In re Thomas S. Clarkson Mem'l College of Tech., 87 N.Y.S.2d 491,493 (App. Div.), aff'd sub noma.People ex rel. Thomas S. Clarkson Mem'l College of Tech. v. Haggett, 89 N.E.2d 882 (N.Y. 1949). 386. See Pratt Inst. v. Boyland, 174 N.Y.S.2d 112,114 (Sup. Ct. 1958), aff'd, 185 N.Y.S.2d 753 (App. Div. 1959); 387. See University of Rochester v. Wagner, 408 N.Y.S.2d 157, 165 (App. Div. 1978), affid, 392 N.E.2d 569 (N.Y. 1979). 388. See Cornell Univ. v. Board of Assessors, 260 N.Y.S.2d 197, 199 (App. Div. 1965); Cornell Univ. v. Thome, 57 N.Y.S.2d 6, 9 (Sup. Ct. 1945); see also Plattsburgh College Benevolent & Educ. Ass'n v. Board of Assessors, 252 N.Y.S.2d 229, 239 (Sup. Ct. 1964) (finding that housing for students and faculty owned by independent charity was not exempt since it was not under direct university control); Faculty-Student Ass'n of N.Y. State College for Teachers, Inc. v. City of Albany, 191 N.Y.S.2d 120, 124 (Sup. Ct. 1959) (same); Plattsburgh State Teachers College Benevolent & Educ. Ass'n v. Barnard, 170 NY.S.2d 712, 718 (Sup. Ct. 1958) (finding that realty used to collect bequests and other funds on behalf of the college was not an educational purpose and therefore not exempt). 389. See Pace College v. Boyland, 151 N.E.2d 900, 902-03 (N.Y. 1958). 390. See University Auxiliary Servs., Inc. v. Smith, 433 N.Y.S.2d 270, 272 (App. Div. 1980), affd, 430 N.E.2d 917 (N.Y. 1981); Harvey Sch. v. Town of Bedford, 312 N.Y.S.2d 586, 587 (App. Div. 1970); Faculty-Student Ass'n of Harpur.College, Inc. v. Dawson, 292 N.Y.S.2d 216,228 (Sup. Ct. 1967). 391. Faculty-Student Ass'n of Harpur College, Inc., 292 N.Y.S.2d at 228.

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encouraging, fostering and protecting... educational institutions."'3 92 Hospitals were another favored charity entitled to tax exemptions even though they charged patients for their services. 93 Like schools and colleges, they could obtain exemptions even for buildings used to provide housing for staff.3 4 But they were less successful in getting exemptions for other, more peripheral property, such as facilities used by doctors for private offices, 395 hospital facilities that were temporarily closed down,396 or vacant land.397 Favored tax treatment was also extended into new areas. It was routinely granted, for example, to not-for-profit entities with a purpose of protecting the natural environment 98 or enhancing the cultural one. 399 In addition, tax exemptions were granted to an agricultural

392. Id. (quoting People ex rel. Watchtower Bible & Tract Soc'y, Inc. v. Haring, 170 N.E.2d 677, 680 (N.Y. 1960)). 393. See St. Luke's Hosp. v. Boyland, 187 N.E.2d 769, 771-72 (N.Y. 1962); People ex rel. Doctors Hosp., Inc. v. Sexton, 48 N.Y.S.2d 201, 205 (App. Div. 1944), affd, 64 N.E.2d 273 (N.Y. 1945); cf. Belle Harbor Home of the Sages, Inc. v. Tishelman, 420 N.Y.S.2d 343, 345 (Sup. Ct. 1979) (ruling that residential home for aged is tax exempt), aff'd, 441 N.Y.S.2d 413 (App. Div. 1981). 394. See St. Joseph's Health Ctr. Properties, Inc. v. Srogi, 412 N.E.2d 921, 921 (N.Y. 1980); St. Luke's Hosp., 187 N.E.2d at 772-73; People ex rel. Alumnae Ass'n Mt. Sinai Hosp. Sch. of Nursing v. Rizzardi, 79 N.Y.S.2d 245, 246 (App. Div. 1948). 395. See Julia L. Butterfield Mem'l Hosp. Ass'n v. Town of Philipstown, 368 N.Y.S.2d 852, 854 (App. Div. 1975); Genesee Hosp. v. Wagner, 364 N.Y.S.2d 934, 943 (App. Div. 1975), aff'd, 352 N.E.2d 133 (N.Y. 1976). 396. See In re Loomis Sanatorium, 48 N.Y.S.2d 852, 853 (App. Div. 1944). 397. See New York Cardiac Ctr., Inc. v. Kondzielaski, 361 N.Y.S.2d 201, 203 (App. Div. 1974). 398. See Mohonk Trust v. Board of Assessors, 392 N.E.2d 876, 877 (N.Y. 1979); People ex rel. Untermyer v. McGregor, 66 N.E.2d 292, 295 (N.Y. 1946); Towns of Indian Lake v. State Bd. of Equalization & Assessment, 271 N.Y.S.2d 501, 502 (App. Div. 1966); Honeoye Cent. Sch. Dist. v. Berle, 415 N.Y.S.2d 565, 572 (Sup. Ct. 1979); Wildlife Preserves, Inc. v. Scopelliti, 321 N.Y.S.2d 1004, 1009 (Sup. Ct. 1971); Whitney Indus. v. Board of Assessors, 265 N.Y.S.2d 1, 4 (Sup. Ct. 1965). But cf. North Manursing Wildlife Sanctuary, Inc. v. City of Rye, 397 N.E.2d 693, 697 (N.Y. 1979) (ruling that exemption was subject to revocation upon change in legislation). 399. See Hotel Dorset Co. v. Trust for Cultural Resources, 385 N.E.2d 1284, 1286 (N.Y. 1978); Chautauqua Inst. v. Town of Chautauqua, 312 N.Y.S.2d 364, 369-70 (App. Div. 1970); Little Theatre of Watertown, Inc. v. Hoyt, 165 N.Y.S.2d 292, 297 (Sup. Ct. 1956), affd, 167 N.Y.S.2d 240 (App. Div. 1957); People ex rel. Pierpont Morgan Library v. Miller, 29 N.Y.S.2d 445, 447 (Sup. Ct. 1941); In re American Museum of Natural History, 187 N.Y.S.2d 390, 393 (Suffolk County Ct. 1959). Cultural institutions received no exemption from unemployment insurance taxes, however, since the enabling legislation was not written so as to provide such an exemption. See Goldovsky Opera Inst. v. Catherwood, 304 N.Y.S.2d 306, 307 (App. Div. 1969); In re Peoples Theatres, Inc., 40 N.Y.S.2d 55, 56 (App. Div. 1943). But see In re Guerin, 80 N.E.2d 326, 329 (N.Y. 1948) (holding that theater company was exclusively educational in purpose, thereby exempting it from unemployment tax).

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society,400 a Salvation Army thrift shop,4"' an ambulance corps,40 2 403 a nonprofit lender of money at moderate rates, and a corporation4 4 formed to study the causes of delinquency and narcotics addiction. 0 Tax relief was extended even more broadly to people and organiza- tions who constructed new housing during the post-World War II period, when housing was in short supply. In addition to existing exemptions for limited dividend housing companies, favorable tax treatment was granted to those who rehabilitated multiple dwellings or constructed new ones in blighted areas.40 6 Tax abatements were also upheld for veter- 408 ans407 and low income elderly. The most important new extension of favorable tax treatment, however, resulted from the state's effort to "encourage business development... by providing tax exemptions to those who would build,

400. See Erie County Agric. Soc'y v. Cluchey, 352 N.E.2d 552, 554 (N.Y. 1976). 401. See Salvation Army v. Commission of Assessment & Taxation, 443 N.Y.S.2d 282, 284-85 (Sup. Ct. 1980). 402. See Wantagh-Levittown Community Ambulance Corps, Inc. v. Board of Assessors, 289 N.Y.S.2d 330, 331-32 (Sup. Ct. 1968). 403. Even though certain activities of a lender may be considered charitable, the organization and the use of its property must be exclusively for charitable purposes in order to receive tax exemption. See People ex rel. Provident Loan Soc'y v. Chambers, 92 N.Y.S.2d 919 (App. Div. 1949), aff'g in part, rev'g in part 88 N.Y.S.2d 459 (Sup. Ct. 1949), affd, 93 N.E.2d 455 (N.Y. 1950). 404. See Lower E. Side Action Project, Inc. v. Town of Liberty, 387 N.Y.S.2d 342, 342 (Sup. Ct. 1972), amending 334 N.Y.S.2d 333 (Sup. Ct. 1972). 405. See People v. Brooklyn Garden Apartments, Inc., 28 N.E.2d 877, 879 (N.Y. 1940). 406. See Akari House, Inc. v. Irizzary, 366 N.Y.S.2d 955, 965 (Sup. Ct. 1975); Martell's Restaurant Corp. v. Housing and Dev. Admin., 316 N.Y.S.2d 340, 343 (Sup. Ct. 1970), aff'd, 323 N.Y.S.2d 389 (App. Div. 1971); Diehm v. City of New York, 143 N.Y.S.2d 298, 303-04 (Sup. Ct. 1955); cf.Marks v. Pelcher, 396 N.Y.S.2d 267,268 (App. Div. 1977) (stating that it is "not improper for the Legislature to encourage condominium ownership" by taxing on the same basis as cooperatives), aff'd, 406 N.E.2d 802 (N.Y. 1980); Property Portfolio 182 Corp. v. Tax Comm'n, 396 N.Y.S.2d 72, 74 (App. Div. 1977) (holding that owner of financially troubled apartment building could overcome presumed validity of negative tax assessment). But see S.S. Silberblatt, Inc. v. Tax Comm'n, 159 N.E.2d 195, 198 (N.Y. 1959) (holding that private builder of housing for military must pay recording tax on private mortgage); Grossman v. Wagner, 192 N.Y.S.2d 557, 567 (Sup. Ct. 1959) (allowing city to revoke special exemptions and abatements given to encourage housing improvements). 407. See Nicolette v. Village of Clyde, 310 N.Y.S.2d 896, 899 (App. Div. 1970); O'Hara v. Board of Supervisors, 254 N.Y.S.2d 358, 359 (App. Term. 1964), affd, 263 N.Y.S.2d 697 (App. Div. 1965); Archer v.Town ofN. Greenbush, 431 N.Y.S.2d 644, 648 (Sup. Ct. 1980), modified, 439 N.Y.S.2d 729 (App. Div. 1981). 408. See Engle v. Talarico, 306 N.E.2d 796, 797 (N.Y. 1973). But cf.Presbyterian Residence Ctr. Corp. v. Wagner, 411 N.Y.S.2d 765,767 (App. Div. 1978) (holding that apartment complex for elderly was not entitled to exemption), aff'd, 400 N.E.2d 1348 (N.Y. 1979).

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expand or improve their industrial, business and commercial facilities."4 9 The state's Industrial Development Agency Act,10 for example, reflected a "modem view of the proper scope of governmental activity," which encompassed "the direct involvement of government in dealing with the economic problems of our state" by creating "a statewide program to maintain, expand and attract industry to our state. 4.' One approach, under section 485-b of the Real Property Tax Law,412 was to exempt from assessment one-half of the value of any new commercial improvements, such as a printing plant" or a shopping center.4 4 A more complex scheme, the constitutionality of which was sustained by the Court of Appeals in a case approving a forty-year, multi-million dollar tax abatement to what is now New York City's Grand Hyatt Hotel, involved acquisition of property by a municipal development corporation and its lease back to private redevelopers.4 5 In other cases, the Court of Appeals sustained the exemption of motion picture admissions from the sales tax out of concern "that the vitality of the moving picture theatre industry might be undermined" without the exemption, 46 as well as favorable tax treatment for the New York Stock Exchange, out of concern that the preexisting stock transfer tax "was driving business from the State."4'17 The courts also sustained favorable tax treatment for individuals who earned their living from practice of a profession4 8 and for owner-occupants of business premis-

409. Newsday, Inc. v. Town of Huntington, 426 N.Y.S.2d 409, 413 (Sup. Ct. 1980), aff'd, 441 N.Y.S.2d 689 (App. Div. 1981), aff d, 434 N.E.2d 226 (N.Y. 1982). 410. See N.Y. GEN. MUN. LAWV§§ 850-888 (McKinney 1986 & Supp. 1996). 411. R. P. Adams Co. v. Nist, 411 N.Y.S.2d 504, 506 (Sup. Ct. 1978), rev'd on othergrounds, 422 N.Y.S.2d 184 (App. Div. 1979). 412. N.Y. REAL PROP. TAX LAW § 485-b (McKinney 1984 & Supp. 1996). 413. See id. § 485-b(2)(a); see also Newsday, Inc., 426 N.Y.S.2d at 414-15. 414. See Pyramid Co. v. Grievance Bd. of Review, 425 N.Y.S.2d 883, 884 (App. Div. 1980). 415. See Wein v. Beame, 372 N.E.2d 300, 302 (N.Y. 1977). 416. United Artists Theatre Circuit, Inc. v. State Tax Comm'n, 420 N.E.2d 93, 94 (N.Y. 1981), rev'g 429 N.Y.S.2d 299 (App. Div. 1980). 417. Boston Stock Exch. v. State Tax Comm'n, 337 N.E.2d 758, 760 (N.Y. 1975). The New York scheme favoring transactions conducted entirely on the New York Stock Exchange was held to be an unconstitutional restraint on commerce, however, in Boston Stock Exchange v. State Tax Commission, 429 U.S. 318 (1977), which reversed the judgment of the Court of Appeals. The original imposition of a tax on out-of-state stock transfers having only a tangential relationship to New York had been sustained in O'Kane v. State, 28 N.E.2d 905 (N.Y. 1940). 418. See Geiffert v. Mealey, 59 N.E.2d 414 (N.Y. 1944). Courts refused, however, to hold that many occupations were actually professions. See Koner v. Procaccino, 347 N.E.2d 658 (N.Y. 1976) (photographer); People ex rel. Tower v. State Tax Comm'n, 26 N.E.2d 955 (N.Y. 1940) (customs broker); People ex rel. Blaikie v. State Tax Comm'n,

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es as part of an overall policy of encouraging investors to "'keep their money and securities [in New York]."'41 9 Finally, they upheld a practice of not assessing most machinery used in a business as part of the business realty subject to taxation.420 The extension of exemptions in certain areas, with a consequent erosion of the tax base, led, in turn, to "'significant ... efforts to broaden the real property tax base' in other areas by restricting once traditional exemptions.42 Probably the most important of the restrictive cases-a case specifically cited by the Court of Appeals as one of these "efforts"2-was Association of the Bar v. Lewisohn.422 As the court observed in Lewisohn, tax exemptions had "proliferated at an alarming rate." By the mid-1960s, "more than 30% of the assessed value of all real property in the State was exempt from taxation for various reasons," and there were concerns that, if exemptions continued to grow at their then current rate, "one half of all real property on the tax rolls of local governments would [soon] be exempt from taxation."424 For this reason, the legislature authorized localities to terminate exemptions for all but a few specified sorts of not-for-profit organiza- tions.425 Joining in this effort "to stem the erosion of municipal tax bases, '4 26 the Lewisohn case upheld termination of the real estate tax exemptions of two hoary institutions--the Explorers Club of New York and the Association of the Bar of the City of New York. Lewisohn and the legislation that it construed did not, however,

46 N.Y.S.2d 629 (App. Div. 1944) (restaurant engineer); In re De Vries, 44 N.Y.S.2d 535 (App. Div. 1943) (furniture designer), afd sub nom. De Vries v. Graves, 54 N.E.2d 379 (N.Y. 1944). 419. Ampco Printing-Advertisers' Offset Corp. v. City of New York, 197 N.E.2d 285, 289 (N.Y. 1964) (alteration in original) (citation omitted); cf. Capelle v. Makowski, 404 N.Y.S.2d 473, 475 (App. Div. 1978) (sustaining Buffalo tax on occupancy of residential as well as commercial premises). 420. See Martin v. Gwynn, 236 N.Y.S.2d 755, 757 (App. Div. 1963); west Mountain Corp. v. Miner, 381 N.Y.S.2d 606, 610-11 (Sup. Ct. 1976); Tri-County Asphalt & Stone Co. v. Board of Assessors, 190 N.Y.S.2d 1021, 1023 (Sup. Ct. 1958); cf Grumman Aircraft Eng'g Corp. v. Board of Assessors, 141 N.E.2d 794, 799 (N.Y. 1957) (ruling that real property leased from federal government was not taxable). But see City of Lackawanna v. State Bd. of Equalization & Assess- ment, 212 N.E.2d 42, 47 (N.Y. 1965) (holding that towers, tanks, blast furnaces, and coke ovens at steel plant were not equipment and thereby taxable as real property). 421. Erie County Agric. Soc'y v. Cluchey, 352 N.E.2d 552, 557 (N.Y. 1976) (quoting Erie County Agric. Soc'y v. Cluchey, 370 N.Y.S.2d 705, 709 (App. Div. 1975)). 422. See id. 423. 313 N.E.2d 30 (N.Y. 1974). 424. Id. at 36. 425. See Act of June 9, 1971, ch. 414, 1971 N.Y. Laws 1261. 426. 313 N.E.2d at 36.

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represent the sharp turn in policy which the Court of Appeals suggested they did. In fact, the courts had been growing increasingly hostile to upholding tax exemptions throughout the second half of the century. One court, for example, upheld the denial of favorable tax treatment to formerly substandard buildings that had been repaired or improved once those buildings ceased to be subject to rent control.427 Exemptions were similarly denied to professional associations,42S to nonprofit organiza- tions providing recreation or mutual assistance to members and 430 others,429 to entities holding property for ultimate charitable use, to an association chartered to erect a soldiers' memorial,43 to the American Kennel Club,432 and to the American Agriculturist. 433 Ceme- teries also found it increasingly difficult to sustain the burden of proof needed to obtain exemptions,4 34 and purchasers of real estate from tax exempt entities found it subject to immediate taxation.4 35 One judge in a suburban county even complained about the practice of assessing as farmland property that was "immediately salable.., for development purposes," since the practice gave an "owner who retain[ed] such lands in a minimum use state ... for speculative purposes ... an unusual

427. See London v. Wagner, 195 N.Y.S.2d 550, 555-56 (Sup. Ct. 1959), aff'd, 214 N.Y.S.2d 647 (App. Div. 1961), affd, 181 N.E.2d 759 (N.Y. 1962). 428. See Smith v. Brooklyn Bar Ass'n, 44 N.Y.S.2d 620 (App. Div. 1943), affd sub nom. In re Smith, 55 N.E.2d 368 (N.Y. 1944); Kings County Pharm. Soc'y v. City of New York, 204 N.Y.S.2d 803 (Sup. Ct. 1960); Second Dist. Dental Soc'y v. Boyland, 139 N.Y.S.2d 123 (Sup. Ct. 1955). 429. See Valeria Home, Inc. v. Cook, 239 N.E.2d 631 (N.Y. 1968); Mt. Tabor Lodge No. 780 v. Nordstrom, 127 N.Y.S.2d 95 (App. Div. 1954); Mohawk Mills Ass'n v. Miller, 22 N.Y.S.2d 993 (App. Div. 1940); Good Will Club, Inc. v. City of Amsterdam, 222 N.Y.S.2d 896 (Sup. Ct. 1960). 430. See Columbia County Mental Retardation Realty Co. v. Palen, 410 N.Y.S.2d 789 (Sup. Ct. 1978); Return Realty Corp. v. Ranieri, 359 N.Y.S.2d 611 (Sup. Ct. 1974); In re White's Will, 195 N.Y.S.2d 349 (Sup. Ct. 1959); People ex rel. Frick Collection v. Chambers, 91 N.Y.S.2d 525 (Sup. Ct. 1949), affd, 94 N.Y.S.2d 819 (App. Div. 1950). 431. See Callahan-Kelly Post Mem'l Ass'n v. City of New York, 124 N.Y.S.2d 261 (Sup. Ct. 1953). 432. See Henry v. American Kennel Club, Inc., 53 N.Y.S.2d 878 (App. Div. 1945). 433. See In re American Agriculturist, Inc., 37 N.Y.S.2d 98 (App. Div. 1942). 434. See Manchik v. Pinelawn Cemetery, 34 N.Y.S.2d 366 (App. Div. 1942), aff'd, 53 N.E.2d 576 (N.Y. 1944); United States Columbarium Co. v. Tax Comm'n, 187 N.Y.S.2d 602 (Sup. Ct. 1959); Beverly Hills Cemetery Corp. v. Rush, 114 N.Y.S.2d 793 (Sup. Ct. 1951). But see Pinelawn Cemetery v. Cesare, 406 N.Y.S.2d 862 (App. Div. 1978) (holding that although no dead bodies had been interred in property, it was held in reserve for future cemetery use and therefore exempt); People ex rel. Woodlawn Cemetery v. Chambers, 91 N.Y.S.2d 774 (Sup. Ct. 1949) (holding that cemetery made no profit from its use of property as service yard which rendered it exempt). 435. See Bronx Garment Ctr., Inc. v. City of New York, 106 N.Y.S.2d 720, 721-22 (Sup. Ct. 1951), aff'd, 113 N.Y.S.2d 257 (App. Div. 1952).

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advantage over the ordinary landowner.' 436 The second case cited by the Court of Appeals was Hellerstein v. Assessor ofIslish, 4 37 which involved an effort to broaden municipal tax bases and render them more equal by limiting legislative freedom to sculpt tax benefits for special interests Hellerstein438 was decided in the aftermath of both a long history of inequality in real property tax assessments and of judicial unwillingness to create procedures to correct the inequality.4 39 The court sought to achieve simultaneously the equality and the enhancement of tax bases by enforcing legislation dating back to the eighteenth century that required all property to be assessed at 100% of value. 40 The Hellerstein court gave municipalities approxi- mately eighteen months to comply with its mandate, but, in fact, the mandate never was obeyed. For example, in a case decided two years after Hellerstein, the appellate division observed that application of equalization rates in Nassau County would result in "the taxing unit. .. experienc[ing] a drop in property tax revenues" and then noted that "the answer, already provided by the Court of Appeals in Hellerstein, [was] for the taxing unit to reassess all of the properties on its rolls."'441 Two years after Hellerstein the Court of Appeals was still lamenting the "deplorable disparity of equalization rates among the

436. In re Union Free Seh. Dist. No. 3, 225 N.Y.S.2d 430, 433 (Sup. Ct. 1962), affd sub nom. Union Free Sch. Dist. No. 3 v. Froelich, 245 N.Y.S.2d 993 (App. Div. 1963). 437. See Erie County Agric. Soc'y v. Cluchey, 352 N.E.2d 552, 557 (N.Y. 1976). 438. 332 N.E.2d 279 (N.Y. 1975). 439. The pattern of judicial unenforcement of the equality requirement began with cases like C.H.O.B. Associates, Inc. v. Board of Assessors, 257 N.Y.S.2d 31 (Sup. Ct.), aff'd, 256 N.Y.S.2d 550 (App. Div. 1964), aff'd, 209 N.E.2d 820 (N.Y. 1965), where the trial judge declared that "the courts have uniformly held that... section [306] does not mandate assessments at 100% of full or market value," but "requires merely that the assessments be at a uniform rate or percentage of full or market value." Id. at 38; accordConnolly v. Board of Assessors, 300 N.Y.S.2d 192, 195 (App. Div. 1969). As a result, the standard of assessment at 100% of full valuation had "not been adhered to in Nassau County since 1938 nor in any other area of the state," 700 Shore Rd. Assocs. v. Board of Assessment Review, 335 N.Y.S.2d 114, 117 (Sup. Ct. 1972), and the effort of one judge to compel the county to 'establish an equitable and scientific system of assessing property for taxation"' had been rebuked. Carlson v. Podeyn, 197 N.Y.S.2d 1006, 1008 (Sup. Ct. 1960) (issuing order holding assessors in contempt), rev'd, 209 N.Y.S.2d 852 (App. Div. 1961). Thus, it was difficult for taxpayers to prove that their property was assessed at a higher rate than their neighbor's. Even if proof were available there was little incentive to pursue the only available remedy, which was to obtain an increase in the neighbor's assessment rather than a decrease in one's own. See Wolf v. Assessors of Hanover, 126 N.E.2d 537, 541 (N.Y. 1955). 440. See Real Property Tax Law, ch. 959, § 306, 1958 N.Y. Laws 2123, 2131 (repealed 1981). Its history was discussed in Hellerstein, 332 N.E.2d at 280-83. 441. 860 Executive Towers, Inc. v. Board of Assessors, 385 N.Y.S.2d 604, 610 (App. Div. 1976).

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several boroughs" of New York City and how the problems it faced in the pending case would not have arisen "[i]f the property owners of each borough had been receiving equal treatment from the taxing authorities at the time of this assessment." 2 Three years after Hellerstein, the appellate division extended the time for compliance to December 31, 1980, 4'4 and the legislature soon did the same."" Finally, in Decem- ber 1981, the legislature, over the governor's veto, passed "legislation which was designed to overrule" Hellerstein, and the Court of Appeals, in Colt Industries v. Finance Administrator,"5 and the Court of Appeals acquiesced in the burial of its goal of equal taxation grounded upon an enhanced tax base. Why did the court cave in? The answer lies in the practice by which "assessors customarily assessed residential at lower levels of assessment than commercial property,"" 6 which in turn meant that implementation of Hellerstein would "result in a significant shift of the tax burden to residential home owners, and cause a serious erosion in the tax base of assessing units." 7 This caused home owners, as well as many government officials, to unite against reassessment. Owners of commercial property, in contrast, were divided. Those who had constructed or renovated facilities in recent years had often been able to obtain favorable tax exemptions and abatements, whereas only those occupying structures built in the distant past paid full taxes. They probably found it easier over time to abandon their existing locations rather than to assemble the political pressure that was needed to force the legislature to comply with Hellerstein. Nor could the court impose pressure on the legislature, since it was incapable of issuing the one order that the legislature would have had to obey-an order prohibiting the collection of real estate taxes until such time as assessment practices had been brought into compliance with its mandate. Fortunately, other efforts to enhance and equalize the tax base were more successful than the Court of Appeals' initiative in Hellerstein. Among the revenue enhancements which the courts sustained were the imposition of an income tax on Native Americans residing on reserva-

442. Rokovsky v. Finance Adm'r, 362 N.E.2d 974, 977 (N.Y. 1977). 443. See Hoffman v. Assessor of Stephentown, 406 N.Y.S.2d 373, 374 (App. Div. 1978). 444. See Act of May 23, 1978, ch. 163, 1978 N.Y. Laws 1. 445. 430 N.E.2d 1290, 1293 (N.Y. 1982) (noting the repeal of section 306 of the Real Property Tax Law by Act of Dec. 3, 1981, ch. 1057, § 1, 1981 N.Y. Laws 2777). 446. Slewett & Farber v. Board of Assessors, 412 N.Y.S.2d 292, 295 (Sup. Ct. 1978), vacated, 438 N.Y.S.2d 544 (App. Div. 1981), modified and affd, 430 N.E.2d 1294 (N.Y. 1982). 447. Id. at 296.

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tions in New York," 8 a sales tax on landlords' receipts from their incidental activity of sub-metering electric current to tenants, 449 a real 45 property tax on house trailers, ' and a use tax on locomotives and automobiles operated within a city's limits. 45' The state also continued its practice of allowing upstate municipalities to impose taxes on those portions of the New York City water supply system located outside the city's limits. 452 "Upon the heels of the financial crisis confronting the State'"4 3 and its municipalities in the 1970s, the Court of Appeals sustained legislation requiring businesses that had already collected sales taxes to accelerate their payment to the state.4 4 More generally, judges continued to adhere to the view that, in order to ensure adequate revenue collection, the "power of taxation on the local activities of large enterprises ought not to be viewed narrowly.'t 55 "[F]aimess and equity" were secondary "criteria against which the validity of tax statutes '456 was to be measured, and it simply could not "be assumed that when the Legislature designed the particular statute it had either a specific or even a general desire to achieve a fair or balanced formula," as distinguished from "the production or allocation of optimum 457 revenue." Despite such dicta, however, judges did not entirely abandon

448. See State Tax Comm'n v. Barnes, 178 N.Y.S.2d 932, 933 (Franklin County Ct. 1958). 449. See Lacidem Realty Corp. v. Graves, 43 N.E.2d 440, 441 (N.Y. 1942); 436 W. 34th St. Corp. v. McGoldrick, 43 N.E.2d 436, 438 (N.Y. 1942). 450. See New York Mobile Homes Ass'n v. Steckel, 175 N.E.2d 151, 153 (N.Y. 1961); Barnes v. Gorham, 175 N.Y.S.2d 376, 383-84 (Sup. Ct. 1957); Beagell v. Douglas, 157 N.Y.S.2d 461,463 (Sup. Ct. 1955). 451. See Niagara Junction Ry. v. Creagh, 154 N.Y.S.2d 229, 237 (App. Div. 1956), affd, 144 N.E.2d 720 (N.Y. 1957); Papiemick v. City of New York, 115 N.Y.S.2d 454, 459-60 (Sup. Ct. 1952); cf. Farrall v. Bragalini, 178 N.Y.S.2d 850, 856 (Sup. Ct. 1958) (upholding higher license fees on station wagons than on passenger cars). 452. See City of New York v. Town of Colchester, 320 N.Y.S.2d 156, 163 (Sup. Ct. 1971); People ex rel. City of New York v. Barker, 34 N.Y.S.2d 510, 514 (Sup. Ct. 1941). 453. Ames Volkswagen, Ltd. v. State Tax Comm'n, 391 N.E.2d 1302, 1303 (N.Y. 1979). 454. See id. In other cases, however, the court struck down legislation dealing with financial crises. See Bethlehem Steel Corp. v. Board of Educ., 378 N.E.2d 115, 116-17 (N.Y. 1978); Flushing Nat'l Bank v. Municipal Assistance Corp., 358 N.E.2d 848, 852 (N.Y. 1976); Hurd v. City of Buffalo, 311 N.E.2d 504, 504 (N.Y. 1974). 455. Federated Dep't Stores, Inc. v. Gerosa, 213 N.E.2d 677, 679 (N.Y. 1965). For some illustrative cases, see Trinity Place Co. v. FinanceAdministrator, 341 N.E.2d 536 (N.Y. 1975) and Bohling v. Corsi, 127 N.Y.S.2d 591 (Sup. Ct. 1953), aff'd, 118 N.E.2d 823 (N.Y. 1954). 456. Long Island Lighting Co. v. State Tax Comm'n, 382 N.E.2d 1337, 1339 (N.Y. 1978). 457. Id. at 1340.

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concerns about fairness and equity. In a number of cases, for example, they applied procedural rules facilitating taxpayer suits.458 In addition, the courts made certain that real estate taxes did not encompass income from the operation of a business but were based only on the value of the realty in question459 by formulating a rule that, in general, the reproduction costs of structures less depreciation, when added to the value of land, constituted the maximum amount at which a property could be assessed.460

VI. CONCLUSION Examination of doctrinal developments in New York's law of administrative procedure, regulatory power, eminent domain, and taxation has uncovered common issues and, to a lesser extent, a common response to those issues. In all four areas, the years after World War II witnessed issues arising out of a growing perception that government entities often used their power to benefit special interest groups rather than the public as a whole. The common response was, on occasion, to strike down

458. See First Nat'l City Bank v. City of New York Finance Admin., 324 N.E.2d 861, 864 (N.Y. 1975) (allowing plaintiff to bring proceeding other than that prescribed by statute as exclusive); Allen v. Rizzardi, 158 N.E.2d 813, 816 (N.Y. 1959) (permitting joinder of claims); Rakov v. Gingold, 194 N.Y.S.2d 17, 21 (Sup. Ct. 1959) (permitting bill of particulars). But see In re Lome, 204 N.Y.S.2d 910, 911 (App. Div. 1960) (ruling that representative suit was not allowed). 459. See People ex rel. Empire State Bldg. Corp. v. Boyland, 135 N.Y.S.2d 764,768 (Sup. Ct. 1954), affd sub nom. Empire State v. Boyland, 149 N.Y.S.2d 214 (App. Div. 1956), affd, 152 N.E.2d 664 (N.Y. 1958). 460. See Great AtI. & Pac. Tea Co. v. Kieman, 366 N.E.2d 808, 811 (N.Y. 1977); People ex rel. Hotel Paramount Corp. v. Chambers, 83 N.E.2d 839, 840 (N.Y. 1949); People exrel. Manhattan Square Beresford, Inc. v. Sexton, 29 N.E.2d 654, 654 (N.Y. 1940); Onondaga County Water Dist. v. Boards of Assessors, 357 N.Y.S.2d 235, 238 (App. Div. 1974); Peck v. Pelcher, 285 N.Y.S.2d 767, 770 (Sup. Ct. 1967). Courts recognized, however, that especially in light of rising construction costs, a valuation method based on reproduction costs could overvalue property, see Great Atl. & Pac. Tea Co., 366 N.E.2d at 812; G.R.F., Inc. v. Board of Assessors, 362 N.E.2d 597, 599 (N.Y. 1977), and hence they required that other approaches also be taken into account. See Mid-Island Shopping Plaza, Inc. v. Podeyn, 204 N.Y.S.2d 11, 20 (Sup. Ct. 1960), aff'd, 218 N.Y.S.2d 249 (App. Div.), aff'd, 180 N.E.2d 63 (N.Y. 1961); People ex rel. Ten Broeck Apartments Corp. v. Kinnaw, 94 N.Y.S.2d 36, 39 (Sup. Ct. 1949), rev'd on other grounds, 97 N.Y.S.2d 511 (App. Div. 1950); see also Joseph E. Seagram & Sons, Inc. v. Tax Comm'n, 200 N.E.2d 447, 448 (N.Y. 1964) (holding that cost of building construction was some evidence of value for the years soon after construction). As they sought to avoid overassessment, the courts conversely avoided underassessment by the rule that, in evaluating income data, assessors did not have to conform their assessments to an unprofitable use of otherwise sound realty. See People ex rel. Lyford v. Allen, 146 N.Y.S.2d 186, 188 (App. Div. 1955); Caroldee Realty Corp. v. Board of Assessors, 340 N.Y.S.2d 774, 780 (Sup. Ct. 1972).

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government acts perceived to benefit narrow interests, although, in general, most legislative and administrative actions were judicially sustained. Nonetheless, differences did exist between the doctrinal areas. New York's judges regularly held administrators to high standards of procedural regularity, and they struck down regulatory schemes with some frequency. In contrast, the judges made only minimal efforts to limit the power of eminent domain, and the limitations they imposed on legislative freedom of taxation were driven at least as much by concerns about preservation of the tax base as they were by objections to the equity of particular taxation schemes. These differences between doctrinal areas were trivial, however, in comparison with the difference in attitude between cases from the 1920s and 1930s and cases in the aftermath of World War II. Especially during the years of the Great Depression, it had seemed clear that the exercise of government power to benefit the ill-housed, the ill-fed, and the underemployed was in the public interest of nearly the entire community, which had every right to control the depredations of the few. In the end, judges, especially the democratically elected ones who occupied the state bench in New York, could not stand in the path of laws enacted by the many to provide redress for the injustices visited upon them by the few. Hence, the judges deferred to the redistributive regulatory legislation of the Smith, Roosevelt, and Lehman administrations in Albany, as well as the national legislation of the New Deal and World War eras. Their deference made the legislation legitimate. When the regulatory laws of the 1920s and 1930s were seen in light of the prosperity of the 1950s, 1960s, and 1970s, however, they assumed a new appearance. With the majority of New Yorkers no longer poor, the old regulatory laws no longer benefitted the many; instead, they seemed to help smaller, narrower groups that readily came to be perceived as special interests. But, as we have seen, identifying statutes as special- interest legislation did not dictate the appropriate judicial response. Judges had four possible approaches. First, they could adopt a nineteenth- century attitude and invalidate special-interest enactments as redistributive transfers of wealth between private individuals. Second, judges could reach the same result of holding a statute invalid by believing that they, unlike legislators who were inevitably beholden to special interests, possessed the independence necessary to achieve a disinterested, public-regarding resolution of interest-group conflict; this belief would lead them to invalidate legislation in particular cases in which they understood their impartial judgment to be superior to that of

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beholden legislators. Third, the judges could focus on procedure and invalidate laws infected by procedural irregularities, while sustaining duly adopted laws. Fourth, they could assume a more humble attitude by which they recognized that they had no better standards than did legislators for resolving interest-group conflict and hence that they should defer to legislative judgments even though the legislators were beholden and the laws arguably were therefore unjust. There is no way of knowing with certainty which of these attitudes judges adopted with greater frequency. Although they occasionally made oblique references to one or another of them, they did not identify their attitude with enough frequency to make a definitive judgment possible. We can only conclude that all four approaches were available to judges and that the judiciary as a whole vacillated among them in response to the facts of particular cases, the arguments of lawyers, and the predilec- tions of the judges. The one conclusion at which one can arrive with certainty is that the interest-group nature of late twentieth-century politics, unlike the Marxian class-struggle character of the New Deal and Progressive eras, did not dictate a single, proper attitude that judges should adopt toward the regulatory, tax, and taking powers of government.

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