Oriental Boulevard Co. v. Heller
| Decision Date | 12 November 1970 |
| Citation | 316 N.Y.S.2d 226,27 N.Y.2d 212,265 N.E.2d 72 |
| Parties | , 265 N.E.2d 72, 2 ERC 1037 ORIENTAL BOULEVARD COMPANY et al., Appellants, v. Austin N. HELLER, as Commissioner of the Department of Air Pollution Control of the City of New York, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Manuel Taxel, New York City, for Oriental Boulevard Co. and another, appellants, and others, intervenors-appellants.
Abraham Engelman and Jacob W. Friedman, New York City, for The Greenwich Co. and others, intervenors-appellants.
Tretter & Tretter, New York City, Franklin E. Tretter, New York City, of counsel, for Booth House, Inc.
J. Lee Rankin, Corp. Counsel (Milton Weinberg, Stephen M. Clayton, Edward P. Walla and Neil F. Murphy, New York City, of counsel), for respondents.
Harold Treanor and William F. Treanor, New Yokr City, for the Real Estate Board of New York, Inc., amicus curiae.
Plaintiffs question the power of the City of New York to regulate by a particular local ordinance the use of fuel burners and refuse incinerators to control the emission of aerial pollutants. The original plaintiffs and several hundred intervenors, all apartment house owners, sought a declaratory judgment to annul and enjoin enforcement of the ordinance on the ground of its unconstitutionality. Special Term granted summary judgment in part in favor of defendant municipal officials, holding that there was power to enact the ordinance and that it was constitutional in design and application. A trial, however, was ordered on the limited issue of whether the time schedule for compliance by owners was unconstitutionally too short (58 Misc.2d 920, 297 N.Y.S.2d 431). The Appellate Division unanimously modified by eliminating the trial as to the time compliance schedule (34 A.D.2d 811, 311 N.Y.S.2d 635).
The principal contentions are: the State has pre-empted the regulation of air pollution; the local ordinance is impossible of compliance within the time schedule provided; the upgrading of equipment is disproportionately costly; the daily accumulative penalties are confiscatory and would discourage justifiable resistance to the ordinance; and the provisions for summary sealing of incinerators and fuel burners are violative of constitutional limitations. Plaintiffs particularly urge that the effect of the ordinance in reducing air pollution would be either nonexistent or so minimal as not to justify the extraordinary expense imposed on property owners.
Other arguments are made but do not require present discussion. They have been adequately treated at Special Term or have insufficient substance.
The amended ordinance is a detailed statute aimed at multiple dwelling uses of fuel and refuse burners (Administrative Code of City of New York, §§ 892--1.0 to 897--2.0, as amd. by Local Laws, 1966, No. 14, and Local Laws, 1968, No. 14 of City of New York). It requires the commissioner of air pollution control to issue operating certificates for fuel burners and incinerators (§§ 892--4.2, 892--4.3, subd. b). Owners must conduct such tests as the commissioner deems necessary to determine the compliance of equipment with the new standards ( § 892--4.1, subd. c). The law sets new standards for lower sulphur content of fuel. It requires the owners to install sulphur emission monitoring and recording devices, and to forward the records to the commissioner ( § 893--1.0, subd. b, par. 1). Installation of apparatus in the fuel burners, entailing substantial outlays, was required within two years ( § 892--4.2, subd. b). Varying with the number of apartments dependent upon an incinerator, owners are required to install additional apparatus within staggered periods up to two years ( § 892--4.3, subd. b, pars. 1, 2, 3, as amd.). After compliance dates have passed, the commissioner is empowered to seal any equipment for which permits have not been obtained as explicitly required by the ordinance, and, in addition, but only after notice and hearing, to seal any other equipment which is emitting harmful substances (§§ 892--6.0; 892--4.3, subd. e). A fine from $25 to $200 a day and imprisonment up to 60 days may be imposed for each day of improper operation of an incinerator ( § 892--4.3, subd. f).
The ponderous argument made that pollution caused by incinerators and oil burning equipment is of trivial effect in the overall solution of a massive problems is fallacious. Accepting the contention that there is only a 2% Daily contribution of pollutants by private apartment houses, this contribution still aggregates over 186 tons per day. Moreover, government is and must be entitled to attack massive problems piecemeal, and to select those most susceptible areas which permit of the least destructive effect on the economy (see 2 Cooley, Constitutional Limitations (8th ed.), p. 1231; United States v. Carolene Prods. Co., 304 U.S. 144, 151, 58 S.Ct. 778, 82 L.Ed. 1234). Thus, while, by common belief, the automobile is the grossest offender in air pollution, the only immediate corrective, evidently, would be its banishment, a socially and economically intolerable solution worse than the condition to be cured.
This is not to say that there are not serious questions raised as to the wisdom and the practicality of the undoubtedly rigorous measures required by the ordinance. But the ultimate conclusion must be that these are questions within the domain of legislative and executive discretion because they involve choices among alternative reasonable courses of action based on the presently limited knowledge of that extent of the pollution evil and methods of cure. So long as there is reasonable basis in available information, and rationality in chosen courses of conduct to alleviate an accepted evil, there is no constitutional infirmity (United States v. Carolene Prods. Co., supra, at pp. 151--154, 58 S.Ct. 778; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 209--210, 55 S.Ct. 187, 79 L.Ed. 281; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, esp. pp. 80--81, 31 S.Ct. 337, 55 L.Ed. 369; People v. Charles Schweinler Press,214 N.Y. 395, 406--408, 108 N.E. 639, 641--643). It is in this context that some may accord respect to arguments made by appellants to the effect that the city in a panic has adopted measures which will not achieve what is hoped or, if so, at a greater cost than necessary. Yet, the rebuttal is that such arguments, however cogent they may appear to be, do not affect the constitutionality of the ordinance. Efforts at solution of serious problems will not wait on perfect knowledge or the application of optimal methods of alleviation to the exclusion of trial and error experimentation. * Unfortunately, the extent of the pollution problem, its life-threatening acceleration, and the high economic and social costs of control are exceeded in gravity by only one or two other domestic or even international issues.
With respect to the effect of cumulative penalties, were this a novel proposition, plaintiffs perhaps might have a substantial contention. However, the courts have long sustained a pyramiding of penalties as valid means of control (People v. Spencer, 201 N.Y. 105, 111, 94 N.E. 614, 616; Suydam v. Smith, 52 N.Y. 383, 388--389). But, on the other hand, if the requirements of the statute were impossible to satisfy, cumulative penalties would be confiscatory, as any penalty would be invalid because irrational (see City of Buffalo v. New York Cent. R.R. Co., 125 Misc. 801, 212 N.Y.S. 1, affd. 218 App.Div. 810, 218 N.Y.S. 713, affd. 271 N.Y. 658, 3 N.E.2d 471). Thus, barring a showing of impossibility of compliance, this argument lacks weight. Moreover, as a practical matter, the property owners are not so vulnerable to oppressive action, and the authorities have indicated that there is no likelihood that cumulative penalties would be invoked to obstruct landlords who wish to litigate the issue or who establish that, for one reason or another, they are unable to comply within the statutory time schedules.
On another somewhat similar issue plaintiffs urge that the regional shortage of...
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