53 N.Y.2d 124 | NY | 1981
Lead Opinion
OPINION OF THE COURT
A statute which requires a landlord to allow installa
Plaintiff Loretto purchased the five-story apartment building known as 303 West 105th Street in New York City from Sharie Wald, taking title to the premises on February 28, 1972. In February, 1976, plaintiff began this class action against TelePrompter Corporation and TelePrompter Manhattan CATV Corp.
Class action status was granted by an order which, as amended, constituted the class as plaintiff had requested but except from it owners of single family dwellings on which a CATV component servicing that dwelling exclusivély had been placed.
TelePrompter moved for summary judgment dismissing the complaint, asserting that it had committed no trespass and that plaintiff had failed to exhaust her administrative remedies. The assertion that it had committed no trespass was grounded on both the legal argument that section 828
Concluding that “the obvious public advantage sought to be served by the legislation under attack greatly outweighs the insignificant nature of the physical use of private property permitted by the statute” (98 Misc 2d 944, 945), Special Term granted summary judgment to TelePrompter and the city declaring section 828 to be a valid exercise of the police power in both crossover and noncrossover situations, denied plaintiff Loretto’s cross motion for partial summary judgment and denied as moot TelePrompter’s motion to renew opposition to class action status, plaintiff Loretto’s motion to amend the class action order to include former
Plaintiff and the proposed intervenor appealed to our court.
I
By agreement dated January 24, 1968, Sharie Wald, the then owner of 303 West 105th Street, for a flat fee of $50, granted TelePrompter permission to install a cable on the building and the exclusive privilege of furnishing CATV services to its occupants. The agreement was for a term of five years and from year to year thereafter unless either party gave the other written notice no later than 90 days prior to the end of a contract year. It also required Wald upon transfer of the building to notify the transferee of
On June 1, 1970 TelePrompter installed a cable slightly less than one-half inch in diameter and of approximately 30 feet in length along the length of the building about 18 inches above the roof top, and directional taps, approximately 4 inches by 4 inches by 4 inches, on the front and rear of the roof. By June 8, 1970 the cable had been extended another 4 to 6 feet and cable had been run from the directional taps to the adjoining building at 305 West 105th Street. Plaintiff Loretto testified at her deposition that she purchased the building in 1971 and took title on February 28, 1972, that she was on the roof to inspect it prior to the closing of title and a number of times after the closing while a new roof was being installed, but that she never saw the cables until CATV service was provided to one of her tenants about two years after her purchase.
The Wald agreement was unrecorded and, therefore, would not bind plaintiff Loretto unless the installation was sufficiently open and visible to put her to inquiry and charge her with constructive notice of the agreement that inquiry would have revealed (Pallone v New York Tele. Co., 34 AD2d 1091, affd 30 NY2d 865; Historic Estates v United Paper Bd. Co., 260 App Div 344, affd 285 NY 658; see Butterworth v Crawford, 46 NY 349; 17 NY Jur, Easements & Licenses, § 187, p 482; Ann., 74 ALR 1250). Transfer to plaintiff Loretto would, however, terminate the license, even though TelePrompter had no notice of the transfer (Restatement, Torts 2d, § 171, Comment f), unless Loretto had (or was chargeable with) notice and took no steps to terminate the license (id., Comment g). The factual isues concerning visibility of the TelePrompter equipment and whether the transfer to Loretto (or her bringing of the present action) terminated the Wald agreement bear upon whether Loretto can recover for trespass occurring before the action was begun, but do not affect her right to maintain the cause of action for declaratory judgment concerning the scope, of and constitutionality of section 828, for that section, if applicable and valid, pre
Nor did her transfer of the premises to Hargate cause the action to abate. Not only was she as the sole stockholder of the corporation the real party in interest, but also the transfer occurred after the action was brought. CPLR 1018 expressly provides that “Upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action,” and was applied in Udell v Haas (20 NY2d 862) to just such a situation as the present. In light of the express legislative policy against abatement of actions (2 Weinstein-Korn-Miller, NY Civ Prac, par 1023.03) and the procedural flexibility intentionally built into the CPLR’s class action provisions (see CPLR 907; 2 Weinstein-Korn-Miller, op. cit., par 907.07), we have no hesitancy in holding that plaintiff Loretto may continue the action notwithstanding the transfer to Hargate.
II
Defendants point to the provision of section 828 (subd 1, par b) prohibiting a landlord from demanding or accepting payment from any cable television company in exchange
The argument might have validity were section 828 (subd 1, par b) a clear joint exercise of the power of eminent domain and the police power, for then the provision for compensation under the eminent domain power might moot any question of the reasonableness of the exercise of the police power (compare Matter of Kansas City v Liebi, 298 Mo 569, and Pera v Village of Shorewood, 176 Wis 261, with City of Kansas City v Kindle, 446 SW2d 807 [Mo]; and see Bosselman, Callies & Banta, The Taking Issue, pp 302; and Ann., 41 ALR3d 636). Not every exercise of the police power that includes a provision relating to compensation is an exercise of the power of eminent domain, however, or constitutes a taking (see French Investing Co. v City of New York, 39 NY2d 587, app dsmd and cert den 429 US 990).
CATV companies such as TelePrompter are incorporated under the Transportation Corporations Law (see Hoffman v Capitol Cablevision Systems, 82 Misc 2d 986, affd 52 AD2d 313; Harper v City of Kingston, 17 Misc 2d 627; 1952 Opns Atty Gen 166), and section 27 of that law includes express provision for compensation “ascertained in the manner provided in the eminent domain procedure law” when lines are run upon, through or over privately owned
In any event, what plaintiff seeks is a determination that because the section grants a statutory license to the CATV company holding the franchise for her area to attach its equipment to her property it is a facially invalid exercise of the police power and, if construed to be an exercise of the power of eminent domain, in that aspect as well.
III
Plaintiff’s argument that crossovers are not within the scope of section 828 is predicated upon the use of the words “landlord” and “tenant” or “tenants” in the section and the reference to “services” in paragraph b of subdivision 1. Ignoring the use of the word “facilities”, she concludes that the entire section deals only with tenant service situations. While there is some support for her view in parts of the legislative history and in dictionary definitions of the words “landlord” and “tenant”, we conclude, in light of the declaration of legislative intent contained in article 28, the language of section 828 considered in its entirety, the use in paragraph a of the section of the word “facilities”, and parts of the legislative history, that the Legislature intended to proscribe interference by any owner of rental property with the installation of CATV facilities on his property whether used to furnish service to the tenant or tenants of the property on which installed or of another property or properties or both, but to permit such an owner to demand payment only from the CATV company making the installation and only for the service extended to tenants of his own property.
As we noted in Matter of City of New York v State of New York Comm. on Cable Tel. (47 NY2d 89, 92-93), the Commission “is invested with broad authority to oversee the burgeoning cable television industry” and is “endowed with broad power to regulate in the public interest,” which should not be inhibited “by unduly emphasizing a particular portion of the enabling act, of somewhat doubtful implication, at the expense of the whole.” The public interests sought to to be furthered by article 28 are identified in section 811, which recites that after “investigation of the public interest associated with cable television” the Legislature has determined that CATV operations involve “vital business and community service” which “must be
Against the background of that declaration of intention, the provisions of section 828 are to be measured. While the word “landlord” is normally used to refer to a property owner in relation to his own tenant or tenants, it can also be understood in a sentence beginning “No landlord shall” as referring to landlords as a class, without reference to a particular tenurial relationship. The sense in which it is used in any given situation depends upon the context. Here the opening clause of paragraph a
As proposed in the Jones Report, as introduced and as first passed by the Legislature,
That, as stated in part II above the Legislature imposed no requirement for compensation makes unnecessary our consideration of many of the eminent domain arguments advanced by plaintiff. There remain, however, questions concerning whether section 828 constitutes proper police power action and whether if it does its interference with plaintiff’s property so far constitutes a “taking” as to invalidate it nonetheless.
A.
What is permissible under the police power varies with economic and social conditions. As the California Supreme Court put it more than half a century ago in Miller v Board of Public Works of City of Los Angeles (195 Cal 477, 484485), the power is “elastic and, in keeping with the growth of knowledge and the belief in the popular mind of the need for its application, capable of expansion to meet existing conditions of modern life and thereby keep pace with the social, economic, moral, and intellectual evolution of the human race.” The flexibility of the power and its availability not only in the interest of public health, safety and morals but also as a means of promoting the moral, intellectual and spiritual needs of our citizens, as well as public convenience and general prosperity, has been recounted in numerous decisions of this court and of the Supreme Court (Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221, 227; Nettleton Co. v Diamond, 27 NY2d 182, 192-198, rearg den 28 NY2d 539, app dsmd 401 US 969; Matter of Wulfsohn v Burden, 241 NY 288, 298-299; People ex rel. Durham Realty Corp. v La Fetra, 230 NY 429, 446-447, app dsmd 257 US 665; Euclid v Ambler Co., 272 US 365, 387, supra; Block v Hirsh, 256 US 135, 155).
Here the purpose sought to be achieved, as stated by the Legislature (§ 811), is rapid development of and maxi
Once it has been found that the Legislature has acted on a subject within its powers and in a manner related to the intended end, it is irrelevant either that other or alternative means of achieving the same end are available (PruneYard Shopping Center v Robins, 447 US 74, 85, n 8; People v Griswold, 213 NY 92, 97) or that one of the effects of the enactment may be to benefit private as well as public interests (Block v Hirsh, supra, at p 155; see Noble State Bank v Haskell, 219 US 104, 110, 580).
B.
As we have had occasion previously to note, there is no “bright-line standard for differentiating permissible police power measures from overly vigorous and hence unconstitutional impositions” (Spears v Berle, 48 NY2d 254, 262). Rather “the facts of each case must be evaluated in order to determine the private and social balance of con
1.
The effect of the character in which government acts was articulated in Lutheran Church in Amer. v City of New York (35 NY2d 121,128-129) and restated in French Investing Co. v City of New York (supra, at p 593) as follows: “[Government interference [with the use of private property] is based on one of two concepts — either the government is acting in its enterprise capacity, where it takes unto itself private resources in use for the common good, or in its arbitral capacity, where it intervenes to straighten out situations in which the citizenry is in conflict over land use or where one person’s use of his land is injurious to others. (Sax, Taking and the Police Power, 74 Yale L. J. 36, 62, 63.) Where government acts in its enterprise capacity, as where it takes land to widen a road, there is a compensable taking. Where government acts in its arbitral capacity, as where it legislates zoning or provides the machinery to enjoin noxious use, there is simply noncompensable regulation.” Here, the State has acted not in furtherance of any governmental program normally carried on by government (such as the aircraft flights involved in United States v Causby, 328 US 256). Rather it seeks in the interest of education and the development of an additional system of communication to adjust “the benefits and burdens of economic life to promote the common good” (Penn Cent. Transp. Co. v New York City, 438 US 104, 124, reh den 439 US 883). It acts as arbiter not as entrepreneur.
But, argues plaintiff, there is here a physical invasion of the property which, whether by government or an entity or person authorized by government, necessarily consti
New York Tel. Co. v Town of North Hempstead (41 NY2d 691), on which plaintiff heavily relies, is not in point because there the town, by enacting an ordinance granting itself the right to affix street lighting fixtures to the company’s poles, invaded the company’s property for a governmental purpose (see 41 NY2d, at p 697). As the Supreme Court noted in Penn Cent. Transp. Co. v New York City, 438 US 104, 124, supra), “A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government” (emphasis supplied) .
There are, moreover, numerous situations in which conceded invasions of private property authorized by government in the community interest but not directly for a governmental entreprenurial purpose have been upheld as valid exercises of the police power. The most recent is PruneYard Shopping Center v Robins (447 US 74, supra), already several times referred to. There the Supreme Court dealt with the California Supreme Court’s interpretation of the State Constitution as requiring that a shopping center owner permit solicitation of petition signatures in an orderly fashion in the common areas of the shopping center. Distinguishing its own earlier decisions holding that the First Amendment encompassed no such right, and characterizing the State constitutional provision as interpreted as the same as a statute enacted under the police power, the court held that notwithstanding that the common-law right to exclude others was (at p 82) “one of the essential sticks in the bundle of property rights,” the fact that the petition solicitors had “physically invaded” the shopping center was not determinative,
Additional examples are not wanting. No less an invasion of the right to exclude than that of which plaintiff complains was involved in People ex rel. Durham Realty Corp. v La Fetra (230 NY 429, app dsmd 257 US 665, supra) and People ex rel. Rayland Realty Co. v Fagan (194 App Div 185, affd 230 NY 653), both of which upheld a statute suspending for two years a landlord’s right to oust his tenant upon termination of the lease. Though in La Fetra we recognized that “The free choice of tenants; the unlimited right to bargain; these are property rights which may not be affected unless a public advantage over and beyond such rights justifies legislative interference” (at p 443), we held the taking analogous to the abatement of a nuisance and within the police power because (at p 444) “What is taken is the right to use one’s property oppressively and it is the destruction of that right that is contemplated and not the transfer thereof to the public use.”
Physical invasion closely analogous to that in the present case was involved in Jackman v Rosenbaum Co. (263 Pa 158, affd 260 US 22). In that case the Supreme Court of Pennsylvania affirmed entry of judgment for defendant notwithstanding the jury’s $25,000 verdict for plaintiff in a trespass action, where the trespass was in demolishing, in order to build a new party wall between plaintiff’s theatre building and defendant’s, the wall of plaintiff’s building in consequence of which for a substantial period of time plaintiff’s theatre could not be used. It did so on the ground that defendant’s entry on plaintiff’s land was not a trespass because in entering plaintiff’s land defendant “exercised merely a lawful right conferred upon him by valid police
Not as closely in point but relevant to the present holding are Noble State Bank v Haskell (219 US 104, supra), upholding an assessment against all banks to guarantee repayment to depositors in any bank, notwithstanding the “invasion” of the bank’s treasury thus mandated, and cases upholding subdivision dedication requirements, such as our decision in Jenad, Inc. v Village of Scarsdale (18 NY2d 78) and that of the California Supreme Court in Ayres v City Council of City of Los Angeles (34 Cal 2d 31). Finally, it is not without significance that Professor Sax considered it an “important point” that “the presence or absence of a formal title-acquisition and/or invasion will never be conclusive” (74 Yale LJ, at p 67; emphasis supplied) and conceded that “one may be required to tolerate a physical invasion of the surface [of his land] without being constitutionally entitled to compensation” (81 Yale LJ, at p 163).
2.
Concerning economic impact, Mr. Justice Holmes, with characteristic colorfulness, spoke of the “petty larceny of the police power”
Here plaintiff Loretto makes no claim that she is not receiving a fair return from the property. What she is saying is that an area of the building for which she does not claim to have any other use may not be used for the benefit of her tenants because without the statute she would be able to obtain a fee from the CATV company, payable in last analysis by the tenant, for failing to exercise her common-law right to exclude the CATV company from her property. But, as the Supreme Court held in Andrus v Allard (444 US 51, 65-66, supra), “the denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking, because the aggregate must be viewed in its entirety.” Both judgment and logic dictate the conclusion that viewed
3.
The situation is no different when we consider interference with reasonable investment-backed expectations. The meaning of the that somewhat esoteric phrase becomes clear if we contrast Kaiser Aetna v United States (supra), in which the Supreme Court found such interference, with PruneYard Shopping Center v Robins (supra), in which it did not. Kaiser Aetna leased a 6,000-acre area on the island of Oahu for subdivision development. The area included Kuapa Pond, a 523-acre private pond extending approximately two miles inland from the Pacific Ocean and separated from it by a barrier beach. Having created a marina-style community of some 22,000 persons around Kuapa Pond, including approximately 1,500 marina waterfront lot lessees who paid a regular annual fee of $72 for maintenance of the pond, Kaiser Aetna with the acquiescence of the United States Corps of Engineers dredged a deeper channel and increased the clearance under a highway bridge only to be told that by so doing they had subjected the pond to a navigational servitude and were precluded from denying the public access to it. Noting that Kaiser Aetna had invested substantial amounts of money in making improvements, the Supreme Court held that the right to exclude others from the pond had been physically invaded by the government’s imposition of a navigational servitude and that that could be done only by invoking the power of eminent domain. In PruneYard, on the other hand, the Supreme Court upheld a State constitutional provision which entitled citizens to exercise petition rights on the property of a shopping center notwithstanding the center’s efforts to exclude the persons soliciting signatures. Referring to the substantial sums that had been invested by the developer in Kaiser Aetna, the Supreme Court held (447 US, at p 84) that in PruneYard “appellants have failed to demonstrate that the ‘right to exclude others’ is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a ‘taking’.”
From those cases it is fair to conclude that the phrase
Tested against the Supreme Court’s factual inquiry criteria, section 828 is a valid police power exercise and not a taking.
V
The dissent’s insistence that there has been a taking is based upon a number of misconceptions.
First, the PruneYard case cannot be dismissed as a First Amendment case (dissent, n 2), for the only First Amendment question considered by the SuprenmCourt was whether the shopping center owner’s Federal constitutional rights were violated by the holding of the California Supreme Court that the free speech provision of the State Constitution required the owner to permit use of his property as a forum for the speech of others. By a divided court it held that it did not. The court was, however, unanimous in its
Secondly, the rent control cases (La Fetra and Fagan) which the dissent in its footnote 2 seeks to distinguish are likewise in point. Those cases were not cited for the proposition that property can be taken for public use without compensation, but for their relevance to the “physical invasion” argument. The distinction between regulation and appropriation which the dissent seeks to draw in that footnote and in its discussion of “the traditional public appropriation
Finally, in stating that there is no reason for foreclosing fair compensation here (dissent, at p 162) and that the majority offers no rationale for its distinction between cable TV companies and telephone companies or other utilities (at p 161), the dissent misconceives the thrust of this opinion. What it holds is that the State may proscribe a trespass action by landlords generally against a cable TV company which places a cable and other fixtures on the roof of any landlord’s building, in order to protect the right of the tenants of rental property, who will ultimately have to pay any charge a landlord is permitted to collect from the cable TV company, to obtain cable TV service in their respective apartments. The bases upon which the Legislature may do so are its power to regulate landlord-tenant relationships and its power to encourage development of an educational and communications medium. Doing so, the State takes nothing for itself as entrepreneur and acts well within its police power.
VI
What creates the need for installation of CATV facilities on rental properties is the desire for such facilities by the inhabitants of the properties. As part of its regulation of the rights of tenants and landlords and in furtherance of the development of CATV as a communications and educational medium, the Legislature may proscribe the landlord’s exaction of any charge over the regular rent for CATV service, whether that charge be imposed directly against the tenant or indirectly by requiring payment of it by the CATV company which will in turn impose it upon the tenant. Neither the physical invasion of the landlord’s property by the attachment of such facilities nor the fact that at the time the facilities are attached to a building no tenant of that building is a CATV subscriber invalidate the
In sum, this simply is not, as the dissent would have it, a “traditional public appropriation case.” Accordingly, the order of the Appellate Division should be affirmed, with costs.
. Hereafter “CATV”.
. Hereafter “Commission”.
. Hereafter collectively referred to as “TelePrompter”.
. That section which is entitled “Landlord-tenant relationship” provides:
“1. No landlord shall
“a. interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require:
“i. that the installation of cable television facilities conform to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well-being of other tenants;
“ii. that the cable television company or the tenant or a combination thereof bear the entire cost of the installation, operation or removal of such facilities; and
“iii. that the cable television company agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities.
“b. demand or accept payment from any tenant, in any form, in exchange for permitting cable television service on or within his property or premises,
“c. discriminate in l’ental charges, or otherwise, between tenants who receive cable television service and those who do not.
“2. Rental agreements and leases executed prior to the effective date of this article may be enforced notwithstanding this section.
“3. No cable television company may enter into any agreement with the owners, lessees or persons controlling or managing buildings served by a cable television, or do or permit any act, that would have the effect, directly or indirectly of diminishing or interfering with existing rights of any tenant or other occupant of such building to use or avail himself of master or individual antenna equipment.”
. The giving of notice to the class was, however, adjourned until determination of the motion and cross motion for summary judgment hereafter referred to. So far as revealed by the record before us, no notice has ever been given.
. A crossover occurs when (1) the line servicing the tenants in a particular building is extended to adjacent or adjoining buildings, (2) an amplifier which is placed on a building is used to amplify signals to tenants in that building and in a neighboring building or buildings, and (3) a line is placed on a building, none of the tenants of which are provided CATV service, for the purpose of providing service to an adjoining or adjacent building. Plaintiff did not seek summary judgment with respect to damages in crossover situations because she conceded that the 5% damage formula sought to be enforced does not apply to crossovers.
. The motion of the Attorney-General and defendants to dismiss the appeal for want of a substantial constitutional question was denied (51 NY2d 1007). The motion did not raise any issue concerning Abeel’s right to appeal from the Special Term order and judgment, but he clearly -had no right to appeal from any part of Special Term’s determination other than its denial of his intervention motion. For reasons hereafter stated we do not reach that question and, therefore, need not consider whether he was entitled to appeal to our court from the Appellate Division’s affirmance of the order denying leave to intervene (but see Cohen and Karger, Powers of the New York Court of Appeals, pp 193, 595).
. CPLR 1003 and 1021 would permit our joining Hargate as a party to the action, even at this stage, but we perceive no immediate reason for doing so and consider it best to leave that question to determination by Special Term should any party believe it advantageous or necessary to make a motion permitting or requiring such joinder (see Udell v Haas, supra).
. The argument excepts so much of the action as seeks to recover for crossovers, which defendants concede are not within section 828 (subd 1, par b). On the latter point, see section III, infra. If correct that concession would, however, raise a question concerning the adequacy of the available administrative review (see Ulmer Park Realty Co. v City of New York, 267 App Div 291, 294, mot for lv to app den 267 App Div 879; Matter of Cherry v Brumbaugh, 255 App Div 880; ALI Model Land Development Code [Proposed Off Draft], p 498).
. Comparable statutes in Connecticut (Conn Gen Stats Ann, tit 16, § 16-333a), and Massachusetts (Mass Gen Laws Ann, ch 166A, §22) either proscribe any payment to an owner of a multiunit residential building or simply imply the owner’s consent from delivery to him of a copy of the statute and a statement, signed by the CATV company, agreeing to be bound by it.
. The grounds urged for the latter contention are that the section provides for determination of compensation by regulation rather than judicial decision, fails to provide for payment in advance of taking or security for such payment though the taking be by a private company, and leaves the determination of compensation to an administrative body the budget of which is funded almost entirely by assessments against the gross receipts of the companies that are parties to such determinations.
. The wording of that clause is “interfere with the installation of cable television facilities upon his property or premises”.
. In earlier versions clause (iii) also included the words “the tenant”. (A7809/1971, §157; S9823/1972, § 828.)
. See the Governor’s Message on approval of chapters 466 and 467 of the Laws of 1972 (1972 McKinney’s Session Laws of NY, p 3395).
. (L 1972, ch 466.)
. The crossover extension on the Loretto property is but 4 to 6 feet of cable in addition to the intrusion for tenant service which, according to the Jones Report, is only upon “negligible unoccupied space.”
. The method provided is similar to that which prevailed under New York City Rent Control, which allowed a $2 monthly surcharge by a landlord to those of his tenants having CATV service.
. Not only does that conclusion further the legislative policies concerning the educational and communications value of cable television declared in section 811 of the Executive Law but also it is supported by the inclusion in
. Though the invasion in North Hempstead was more than minimal, not every entreprenurial invasion by government is a taking. See United States v Causby (328 US 256, 265-266), where after pointing out that there was “a direct invasion of respondents’ domain” the court quoted from United States v Cress (243 US 316, 328) “it is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking” (emphasis supplied).
. Contrast Kaiser Aetna v United States (444 US 164, 179-180), where in
. The United States Supreme Court, affirming, did not reach the constitutional question because it found that the custom of party walls was introduced by the first settlers and that a statute embodying that understanding did not need to invoke the police power.
. (1 Holmes-Laski Letters [Howe ed, 1953], p 475, explaining that at the request of his colleagues he had deleted the phrase from his opinion in Jackman v Rosenbaum Co., 260 US 22, supra.)
. The decisions are reviewed in chapter 8 of Bosselman, Callies and Banta, The Taking Issue.
. (Id., pp 208-210; Sax, Takings and the Police Power, 74 Yale LJ 36,
. Consistent with this interpretation of the phrase is the Supreme Court’s use of it in Penn Cent. Transp. Co. v City of New York (438 US 124, 127, supra) to describe its earlier holding in Pennsylvania Coal Co. v Mahon (260 US 393). In Mahon the court invalidated a statute forbidding the mining of coal that would cause subsidence of any house, noting that the coal company had sold the surface rights to the land in question but expressly reserved the right to remove the coal and that the statute would destroy this “expectation”.
. City of Albany v State of New York (28 NY2d 352) and Heyert v Orange & Rockland Utilities (17 NY2d 352), cited at page 160 of the dissent, are not to the contrary. In both we held that whether what was taken had only nominal value was beyond our jurisdiction to consider (17 NY2d, at p 364; 28 NY2d, at p 360) and in Heyert we noted further that the easement was “in essence a partial taking which, in many ways, may cause only nominal damage but in some instances may result in serious consequential damage to the adjacent land” (17 NY2d, at p 364; emphasis supplied).
. While relying on Professor Sax in one respect (dissent, at n 1), the dissent quotes Professor Michelman (dissent, at p 160) on physical invasion and ignores Professor Sax’ view that physical invasion “ ‘will never be conclusive’ ” (stated in both of his articles and quoted above at p 148). What it overlooks is that what Professor Michelman is discussing (as the quotation in the dissent shows) is “when the government deliberately brings it about that its agents, or the public at large, ‘regularly’ use, or ‘permanently’ occupy, space” (at p 1184; emphasis supplied), and that the section of Michelman’s article referred to discusses “when government in fact makes regular or permanent use of a thing” (at p 1186).
. The dissent fails to recognize the legislative restriction of section 828 to rental properties and the part that restriction plays in our holding, as is shown by its suggestion (dissent, at p 161) that the concept of this opinion would
Dissenting Opinion
(dissenting). The legislation involved here is not a valid exercise of the police power. Rather, it authorizes an unconstitutional taking of plaintiff’s property without just compensation. Although the concepts of a “taking” and the exercise of the State’s police power are related and sometimes intertwined, they are distinguishable. By its decision today, the court unnecessarily muddies the distinction between the two concepts and eliminates an important protection against unfair invasions of private property. A dissent therefore is in order.
Plaintiff, who owned an apartment building, alleges that TelePrompter ran a television cable across the roof of the building, placed other equipment on the roof and dropped another cable down the front of the five-story brownstone to provide service to a first floor tenant. In 1972, the Legislature enacted section 828 of the Executive Law, barring any lordlord from interfering with the installation of cable television facilities on their premises and from demanding any compensation for permitting installation and service other than that set by the State Commission on Cable Television. The Commission has established $1 as the general fee to which all landlords will be entitled.
The majority concludes that the imposition upon landlords constitutes a valid exercise of the State’s police power because it furthers development of cable television “as a communications and educational medium” and regulates the tenant-landlord relationship. In addition, the majority cites the “minimal nature” of the physical invasion of the landlord’s properties (at p 155). If this case involved merely a limitation of the uses to which a landlord could put a building, the majority’s analysis might be appropriate. What is involved here, however, is a State-authorized physical appropriation of a portion of the landlord’s property for the use of the cable television corporation. Such appropriations have long been considered clear cases of compensable takings, and courts have not resorted to the various balancing tests applied to State regulation under the police power. As will be shown, this court in the past has recognized the distinction between the two concepts — a distinction the majority now blurs.
During the same period there arose the separate concept of the State’s police power imposing restraints upon the use of property, when that use might conflict with the health, safety, or other important interests of society. This power, as articulated in 1851 by Chief Justice Shaw of Massachusetts, was based on the principle that “every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious * * * to the rights of the community” (Commonwealth v Alger, 7 Cush [61 Mass] 53, 84-85). But Shaw was careful to note that this regulation under the police power, which did not require compensation, “is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency- requires it” (Commonwealth v Alger, 7 Cush [61 Mass] 53, 85, supra).
Although this distinction was theoretically tidy, it became apparent with the growth of government regulation that private property could be so heavily regulated as to lose all practical value to its owner. The Supreme Court, applying the Fifth Amendment “taking clause” to the States through the Fourteenth Amendment, recognized that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking” (Pennsylvania Coal Co. v Mahon, 260 US 393, 415,
What Mahon and the subsequent police power regulation cases have done is to create a right to compensation in addition to that already existing for the outright appropriation of private property. It is true that the courts over the years have been able to create “no set formula to determine where regulation ends and taking begins” (Goldblatt v Hempstead, 369 US 590, 594). The constantly changing nature of government regulation in a modern society and the myriad factual situations in which regulation can arise doom attempts to find simple answers.
Whatever difficulties courts have encountered in formulating a standard for determining when regulation, under
By analyzing as an exercise of the State’s police power what is in reality a clear example of a taking in the traditional sense of a physical appropriation, the majority has removed an important barrier to uncompensated takings of
The majority in effect reasons that because excessive and improper regulation under the police power is sometimes termed a de facto taking, police power analysis can therefore be applied to all takings, even those clearly falling into the traditional public appropriation category. This turns the de facto taking concept, originally an expansion of the traditional protection of the right to compensation, into a tool to sharply curtail that right.
Here the cable television company has run its cables across the roof and down the front of the building and into the building, without the owner’s authorization. It seeks to assert what is, in effect, an easement in gross (see Antono
The anomalous nature of the majority’s position is highlighted by comparison with New York Tel. Co. v Town of North Hempstead, (supra). In that case, the town placed light fixtures on the utility’s poles without the company’s permission. This court unanimously held that this was “a clear instance of a taking of private property for the use of the municipality” (41 NY2d 691, 697, supra).
The requirement of just compensation where private property is appropriated for a public use has long been recognized by this and other courts. It is a concept distinct from that of a de facto taking, which provides a limit to uncompensated police power regulation, not a cutback on the requirement for compensation for physical appropriation. The majority simply fails to recognize this distinction. In treating the clear physical appropriation of the landlord’s property as an exercise of the police power, the majority wipes out an important protection against improper government encroachment on private property rights.
This case involves a clear instance of a taking requiring just compensation, yet the payments here fall far short of what is required both by constitutional standards and by fundamental principles of condemnation law. The regulations of the Commission provide that a landlord may apply for a reasonable fee for allowing installation of cable television equipment, and the Commission will pass upon the landlord’s application (9 NYCRR 598.2, 598.7). That same Commission, however, has already declared that the reasonable fee, “absent a special showing of greater damages attributable to the taking, is a payment of a one-time, $1.00 fee” (State Commission on Cable Television, Clarification of General Policy, Aug. 27, 1976, p 4). Thus, what constitutes a reasonable fee is established by administrative fiat rather than by judicial hearing. This blanket declaration cannot realistically be seen as providing a fair assessment of the damage that an apartment building owner has suffered through the installation of cables and transmission
And it cannot be suggested that the owner wait until some future time, when construction or other form of development, even by a subsequent owner, has rendered the cables and equipment a serious actual impediment, before seeking compensation. It is a long-accepted principle that an owner is entitled to compensation for the value of the property at the time of the taking (see, e.g., 4 Nichols, Eminent Domain, § 12.23, p 12-117).
Finally, it should be noted that the instant method of determining compensation comports with the procedural requirements of neither the former Condemnation Law, in effect when this action began, nor the superseding Eminent Domain Procedure Law.
For these reasons, I must dissent and vote to reverse.
Judges Jasen, Jones, Wachtler and Fuchsberg concur with Judge Meyer; Judge Gabrielli concurs in a separate opinion; Chief Judge Cooke dissents and votes to reverse in another opinion.
Order affirmed.
. Scholars have also struggled to construct theoretical models for guidance in deciding such cases. Professor Sax framed the question as whether the government in its regulation was acting in its entrepreneurial capacity or merely arbitrating between private factions. He observed that “the acquisition of title or the taking of physical possession will be present in the great majority of taking cases under this theory. But — and this is the important point — the presence or absence of a formal title-acquisition and/or invasion will never be conclusive. These formalities are not necessarily present when the government, as an enterpriser, is acquiring resources for its own account” (Sax, Takings and the Police Power, 74 Yale LJ 36, 67). He has since expressed the view that the question was “considerably more complex” than his original formulation took into account (Sax, Takings, Private Property and Public Rights, 81 Yale LJ 149, 150, n 5). Another thorough discussion of the limits of police power regulation of property was offered by Professor Michelman (Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv L Rev 1165). These discussions focus on the hard-to-define boundary between valid police power regulation and de facto takings, however, not on cases of clear appropriation of property for public use as is involved here.
. People ex rel. Durham Realty Corp. v La Fetra (230 NY 429, app dsmd 257 US 665) and People ex rel. Rayland Realty Co. v Fagan (194 App Div 185, affd 230 NY 653), cited by the majority, do not stand for the proposition that property can be taken for public use without compensation. The court upheld statutes preventing landlords for two years from summarily evicting tenants upon the expiration of their leases and limiting rent to a reasonable amount. There was no appropriation of any portion of the landlords’ buildings. The court held that to the extent the police power regulations limited landlords’ power to evict existing tenants, compensation in the form of reasonable rent was provided. The rent control cases involved government regulations that only impaired the property interests of landlords in obtaining as much rent as possible for their apartments and in summarily evicting those tenants unwilling to pay the increased rents. There was no restriction of the landlords’ power to choose among prospective new tenants. Such regulation is similar to environmental or zoning regulations that limit the profitability of an owner’s property. It is qualitatively different from government action setting aside a portion of the landlords’ property for a public use.
Likewise, PruneYard Shopping Center v Robins (447 US 74) is not apposite. That case involved State restrictions of a shopping center’s power to limit the exercise of free speech and petition rights by some members of the public, where the general public was invited to the center. The Supreme Court found that this restriction did not rise to the level of a taking, as contrasted with the situation presented in Kaiser Aetna v United States (444 US 164).
In reaching this conclusion the Supreme Court weighed factors, such as interference with investment-backed expectations, that are appropriate for determining whether government regulation constitutes a de facto taking. Unlike PruneYard, the instant case involves more than a limitation on a property owner’s right to exclude certain members of the public. It involves the physical appropriation of portions of the owner’s building for the installation of equipment and cables. This is what makes it a taking of the traditional type. It should also be noted that the free speech and petition interests of the public that were protected by the State regulation in PruneYard do not exist here.
. Although the court found the installation of the light fixtures to be an appropriation of private property falling outside the valid scope of the police power, it also held that the taking involved personal property and that the town’s eminent domain power extended only to real property.
. Although the new Eminent Domain Procedure Law had not yet taken effect when the complaint was filed, the statement of purpose contained in that revision states principles that are nonetheless apt here: “[i]t is the purpose of this law to provide the exclusive procedure by which property shall be acquired by exercise of the power of eminent domain in New York state; to assure that just compensation shall be paid to those persons whose property rights are acquired by the exercise of the power of eminent domain; * * * to encourage settlement of claims for just compensation and expedite payments to property owners; to establish rules to reduce litigation, and to ensure equal treatment to all property owners” (EDPL 101; see, also, former Condemnation Law, § 3).
Concurrence Opinion
(concurring). I agree with the analysis of the taking issue expressed in the dissenting opinion insofar as it concludes that the State-authorized appropriation of a landlord’s property for the benefit of cable television companies is a taking requiring compensation, but I nevertheless concur in the result reached by the majority since I believe that the current legislative framework provides an adequate system to ensure that just compensation will be afforded for any taking which actually occurs.
Section 828 (subd 1, par b) of the Executive Law provides that a landlord may not accept payment from any cable television company in exchange for permitting cable television service on or within his property in excess of any amount which the State Commission on Cable Television shall, by regulation, determine to be reasonable. The regulations of the Commission then provide that a landlord shall be entitled to the payment of a reasonable fee, pursuant to this section, upon Commission approval of an application for such a fee (9 NYCRR 598.2). While the Commission has decided, as a matter of policy, that the compensation due to a landlord who complains of the mere placement of a cable across his rooftop, without more, shall be limited to the nominal sum of $1, it is obvious that a landlord who actually incurs damage to his property or is restricted in the use to which he might put that property will receive compensation commensurate with the greater injury. Thus, if the installation of a cable substantially interferes with the owner’s present or future use of the building, we must presume that the Commission would award reasonable compensation for the taking pursuant to its regulations.
Accordingly, I would affirm the order of the Appellate Division, but I would do so upon the ground that legislation has supplied a mechanism for providing just compensation for any taking which actually occurs.