NO.

______

In the
Supreme Court of the United States
________________

G-MAX MANAGEMENT, INC., et al.,

Petitioners,
v.
STATE OF NEW YORK, et al.,
Respondents.
________________
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Second Circuit
________________

PETITION FOR WRIT OF CERTIORARI

________________

Jeffrey S. Bucholtz Randy M. Mastro

Amy R. Upshaw Counsel of Record
Alexander Kazam Leigh M. Nathanson
Zoe M. Beiner KING & SPALDING LLP
KING & SPALDING LLP 1185 Ave. of the Americas
1700 Pennsylvania Ave. NW 34th Floor
Suite 900 New York, NY 10036
Washington, DC 20006 (212) 556-2100
rmastro@kslaw.com
Counsel for Petitioners
April 18, 2024
 QUESTIONS PRESENTED
New York’s Housing Stability and Tenant
Protection Act of 2019 transforms a temporary rent-
regulation system into a permanent expropriation of
vast swaths of private real estate, without just
compensation, in the name of “affordable housing.”
Among other things, the Act prohibits owners—even
of small and midsized apartment buildings like
Petitioners—from reclaiming rental units for their
own personal use, and grants tenants a collective veto
right over condo/co-op conversions. As Justice Thomas
has observed, the constitutionality of regimes like
New York’s is “an important and pressing question”
that has divided the courts of appeals and should be
addressed in “an appropriate future case.”
74 Pinehurst LLC v. New York, 2024 WL 674658, at *1
(U.S. Feb. 20, 2024) (statement respecting denials of
certiorari). Although case-specific vehicle concerns
may have dissuaded the Court from granting other
recent petitions that sought to challenge the
constitutionality of rent-control regimes in general,
this case is based on a substantially different record,
targeting only a specific set of amendments to New
York’s regulatory regime, and thus provides an ideal
vehicle for this Court’s review.
The questions presented are:
1. Whether New York’s rent-regulation laws, and
in particular its new restrictions on owner reclamation
and condo/co-op conversions, effect physical takings.
2. Whether this Court should overrule Penn
Central or at least clarify the standards for
determining when a regulatory taking occurs.
 ii

PARTIES TO THE PROCEEDING

Petitioners Jane Ordway and Dexter Guerrieri, G-
Max Management, Inc., 1139 Longfellow LLC, Green
Valley Realty LLC, 4250 Van Cortland Park East
LLC, 181 W. Tremont Associates LLC, 2114 Haviland
Associates LLC, G. Siljay Holding LLC, 125 Holding
LLC, J. Brooklyn 637-240 LLC, and 447-9 16th LLC
were appellants in the Second Circuit.
The State of New York, Attorney General Letitia
James, New York State Division of Housing and
Community Renewal Commissioner Ruthanne
Visnauskas, and New York State Division of Housing
and Community Renewal Deputy Commissioner
Woody Pascal were appellees in the Second Circuit.
Community Voices Heard and New York Tenants
& Neighbors appeared in the Second Circuit as
intervenors supporting appellees.
 iii

CORPORATE DISCLOSURE STATEMENT

G-Max Management, Inc., 1139 Longfellow, LLC,
Green Valley Realty LLC, 4250 Van Cortland Park
East, LLC, 181 W. Tremont Associates, LLC, 2114
Haviland Associates, LLC, G. Siljay Holding LLC, 125
Holding LLC, J. Brooklyn 637-240 LLC, and 447-9 16th
LLC have no parent corporations, and no publicly held
corporation owns 10% or more of the stock of any of
these entities.
 iv

RELATED PROCEEDINGS
The following proceedings are directly related to
this petition under Rule 14.1(b)(iii):
• Building & Realty Inst. of Westchester &
Putnam Counties, Inc. v. New York, Nos. 21-
2526, 21-2448, 2024 WL 1061142 (2d Cir.
Mar. 12, 2024). Judgment entered March 12,
2024.
• Building & Realty Inst. of Westchester &
Putnam Counties, Inc. v. New York, No. 19-
cv-11285, 2021 WL 4198332 (S.D.N.Y. Sept.
14, 2021). Judgment entered September 14,
2021.
 v

TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDING ........................... ii
CORPORATE DISCLOSURE STATEMENT ........... iii
RELATED PROCEEDINGS ..................................... iv
TABLE OF AUTHORITIES ...................................... ix
PETITION FOR WRIT OF CERTIORARI ................ 1
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED...................................... 1
INTRODUCTION ....................................................... 1
STATEMENT ............................................................. 3
A. Background ................................................... 3
B. Proceedings Below ...................................... 10
REASONS FOR GRANTING THE PETITION....... 13
I. The Second Circuit’s Decision Deepens A
Circuit Split Regarding The Physical Takings
Doctrine.............................................................. 13
A. Courts Are Divided Over Whether
Regulations That Generally Prohibit
Landlords From Evicting Tenants
Constitute a Physical Taking..................... 13
B. The Second Circuit Is on the Wrong Side
of This Circuit Split .................................... 15
 vi

II. The Second Circuit’s Regulatory Takings

Holding Also Warrants Review......................... 19
A. The Second Circuit’s Regulatory Takings
Decision Is Wrong....................................... 19
B. The Court Should Overrule Penn Central
or Clarify the Proper Standard .................. 22
III. This Case Provides An Excellent Vehicle To
Address Two Exceptionally Important Issues.. 26
A. This Case Is an Excellent Vehicle to
Address When Restrictions on Eviction
Effect a Physical Taking ............................ 26
B. This Case Is an Excellent Vehicle to
Clarify the Standards Applicable to
Regulatory Takings .................................... 29
C. The Issues Are Pressing and
Exceptionally Important ............................ 29
CONCLUSION ......................................................... 31
APPENDIX
Appendix A
Summary Order of the United States
Court of Appeals for the Second
Circuit, G-Max Mgmt., Inc. v. New
York, Nos. 21-2526; 21-2448 (March
12, 2024)................................................ App-1
 vii

Appendix B
Opinion and Order of the United
States District Court for the
Southern District of New York, G-
Max Mgmt., Inc. v.
New York, No. 7:20-cv-00634-KMK
(September 14, 2021).......................... App-18
Appendix C
Complaint, G-Max Mgmt., Inc. v.
New York, No. 7:20-cv-00634-KMK
(S.D.N.Y. January 23, 2020) ............ App-131
Appendix D
Relevant Provisions of New York Statutes
and Regulations
N.Y. Gen. Bus. L. § 352-eeee ......... App-227
N.Y. Unconsol. L. § 26-504 ............ App-229
N.Y. Unconsol. L. § 26-510 ............ App-232
N.Y. Unconsol. L. § 26-511 ............ App-236
N.Y. Comp. Codes R. & Regs. tit. 9,
§ 2520.6 ....................................... App-243
N.Y. Comp. Codes R. & Regs. tit. 9,
§ 2524.1 ....................................... App-248
N.Y. Comp. Codes R. & Regs. tit. 9,
§ 2524.3 ....................................... App-249
N.Y. Comp. Codes R. & Regs. tit. 9,
§ 2524.4 ....................................... App-253
N.Y. Comp. Codes R. & Regs. tit. 9,
§ 2524.5 ........................................ App-257
 viii

N.Y.C. Admin. Code § 26-405 ....... App-265

N.Y.C. Admin. Code § 26-405.1 .... App-267
N.Y.C. Admin. Code § 26-408 ....... App-272
 ix

TABLE OF AUTHORITIES
Cases
335-7 LLC v. City of New York,
2023 WL 2291511 (2d Cir. Mar. 1, 2023) .............. 13
74 Pinehurst LLC v. New York,
2024 WL 674658 (U.S. Feb. 20, 2024) ......... 2, 13, 26
74 Pinehurst LLC v. New York,
59 F.4th 557 (2d Cir. 2023).................. 12, 13, 15, 17
Am. Legion v. Am. Humanist Ass’n,
588 U.S. 29 (2019) .................................................. 25
Armstrong v. United States,
364 U.S. 40 (1960) ............................................ 20, 22
Bridge Aina Le’a, LLC
v. Haw. Land Use Comm’n,
141 S. Ct. 731 (2021).................................. 24, 25, 29
Cedar Point Nursery v. Hassid,
594 U.S. 139 (2021) ................ 1, 2, 15, 16, 17, 18, 19
Cmty. Hous. Improvement Program
v. City of New York,
59 F.4th 540 (2d Cir. 2023)................... 2, 11, 12, 13,
14, 17, 18, 21
Dist. Intown Props. Ltd. P’ship
v. District of Columbia,
198 F.3d 874 (D.C. Cir. 1999) ................................ 24
Dolan v. City of Tigard,
512 U.S. 374 (1994) ................................................ 21
First English Evangelical Lutheran Church
v. County of Los Angeles,
482 U.S. 304 (1987) ................................................ 24
 x

Gallo v. District of Columbia,

610 F. Supp. 3d 73 (D.D.C. 2022) .......................... 14
Heights Apartments, LLC v. Walz,
30 F.4th 720 (8th Cir. 2022) .......... 14, 15, 20, 22, 28
Horne v. Dep’t of Agric.,
576 U.S. 350 (2015) ............................ 2, 3, 17, 18, 21
Janus v. Am. Fed. of
State, County, & Mun. Emps.,
585 U.S. 878 (2018) ................................................ 23
Kagan v. City of Los Angeles,
2022 WL 16849064
(9th Cir. Nov. 10, 2022) ............................. 13, 17, 18
Kokot v. Green,
836 N.Y.S. 2d 493,
2007 WL 283081 (N.Y. Civ. Ct. 2007) ..................... 6
Loretto
v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982) .......................................... 16, 17
Murr v. Wisconsin,
582 U.S. 383 (2017) ................................................ 19
N.Y. State Rifle & Pistol Ass’n v. Bruen,
597 U.S. 1 (2022) .............................................. 24, 25
Nekrilov v. City of Jersey City,
45 F.4th 662 (3d Cir. 2022).................................... 25
Pa. Coal Co. v. Mahon,
260 U.S. 393 (1922) .................................................. 3
Pakdel v. City & County of San Francisco,
636 F. Supp. 3d 1065 (N.D. Cal. 2022).................. 14
 xi

Penn Cent. Transp. Co. v. City of New York,

438 U.S. 104 (1978) ................................ 3, 19, 23, 25
Pennell v. City of San Jose,
485 U.S. 1 (1988) .................................................... 22
Sheetz v. County of El Dorado,
__ S. Ct. __,
2024 WL 1588707 (U.S. Apr. 12, 2024) ........... 16, 21
Tahoe-Sierra Preservation Council, Inc.
v. Tahoe Reg’l Planning Agency,
535 U.S. 302 (2002) ................................................ 25
United States v. Playboy Ent. Grp., Inc.,
529 U.S. 803 (2000) ................................................ 25
Williams v. Alameda County,
642 F. Supp. 3d 1001 (N.D. Cal. 2022).................. 14
Williams v. Alameda County,
657 F. Supp. 3d 1250 (N.D. Cal. 2023).................. 15
Yee v. City of Escondido,
503 U.S. 519 (1992) .................... 2, 11, 14, 15, 18, 28
Constitutional Provisions
U.S. Const. amend. V ................................................. 1
U.S. Const. amend. VI .............................................. 25
Statutes
28 U.S.C. § 1254 ......................................................... 1
28 U.S.C. § 1331 ....................................................... 10
Cal. Civ. Code § 798.56 ............................................. 18
Cal. Civ. Code § 1946.2............................................. 30
D.C. Code § 42-3505.01 ............................................ 30
 xii

N.Y. Gen. Bus. Law § 352-eeee (2018) ....................... 7

N.Y. Unconsol. Law § 26-510 ..................................... 7
N.Y. Unconsol. Law § 8581 et seq. ............................. 4
N.Y. Unconsol. Law § 8601 et seq. ............................. 4
N.Y. Unconsol. Law § 8603 ........................................ 5
Or. Rev. Stat. § 90.427 ............................................. 30
Regulations
N.Y. Comp. Codes R. & Regs. tit. 9, § 2520.6 ............ 6
N.Y. Comp. Codes R. & Regs. tit. 9, § 2523.5 ............ 6
N.Y. Comp. Codes R. & Regs. tit. 9, § 2524.4 ............ 6
N.Y.C. Admin. Code § 25-501 et seq. .......................... 4
N.Y.C. Admin. Code § 26-408 ..................................... 6
N.Y.C. Admin. Code § 26-511 ..................................... 6
Regs. of Berkeley Rent Bd.,
ch. 12, subch. C, § 1274.5 (Cal.) ............................ 30
Santa Monica Reg.,
ch. 4 subch. G, § 4107 (Cal.) .................................. 30
Other Authorities
2019 N.Y. Sess. Laws § 6458...................... 5, 6, 7, 8, 9
A08281 Memo,
N.Y. STATE ASSEMBLY,
https://bit.ly/3MEgvPt ............................................. 5
 xiii

BIO,
74 Pinehurst LLC v. New York,
2024 WL 674658
(U.S. Feb. 20, 2024) (No. 22-1130) ........................ 27
BIO,
335-7 LLC v. City of New York,
2024 WL 674658
(U.S. Feb. 20, 2024) (No. 22-1170) ........................ 27
Bray, Zachary
The New Progressive Property
and the Low-Income Housing Conflict,
2012 B.Y.U. L. Rev. 1109 (2012) ............................. 3
Bronin, Sara C., & J. Peter Byrne,
Historic Preservation Law (2d ed. 2021) .............. 23
Domestic Pol’y Council
& Nat’l Econ. Council,
The White House Blueprint
for a Renters Bill of Rights (Jan. 2023) ................ 30
H.3744,
193d Gen. Ct. (Mass. 2023) ................................... 30
N.Y. City Planning Comm’n,
Rezoning New York City:
A Guide to the Proposed Comprehensive
Amendment to the Zoning Resolution
of the City of New York (1959), available at
https://archive.org/details/rezoningnewyork
c00newy .................................................................... 5
 xiv

Rabiyah, Sam
NYC Had 88,830 Vacant Rent-Stabilized
Apartments Last Year, City Housing Agency
Estimates, The City (Oct. 20, 2022),
https://bit.ly/3WEdPpC .......................................... 30
Steven L. Newman Real Estate Inst.,
Baruch Coll., CUNY, NYC
Condominium and Cooperative
Conversion: Historical Trends and
Impacts of the Law Changes (May 5, 2021),
available at https://tinyurl.com/284xca7r ............... 7
Transcript,
Looking Back on Penn Central:
A Panel Discussion with the
Supreme Court Litigators,
15 Fordham Env’t L. Rev. 287 (2004) ................... 23
Zaveri, Mihir
Why It’s So Hard to Find an Affordable
Apartment in New York, N.Y. Times
(Aug. 1, 2022) ........................................................... 4
 PETITION FOR WRIT OF CERTIORARI
Petitioners respectfully ask this Court for a writ
of certiorari to review the judgment of the United
States Court of Appeals for the Second Circuit in this
case.
OPINIONS BELOW
The opinion of the court of appeals (App.1–17) is
available at 2024 WL 1061142. The opinion of the
district court (App.18–130) dismissing Petitioners’
claims is available at 2021 WL 4198332.
JURISDICTION
The Second Circuit issued its opinion on March
12, 2024. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Takings Clause of the Fifth Amendment,
which applies to the States through the Fourteenth
Amendment, provides: “Nor shall private property be
taken for public use, without just compensation.”
Relevant provisions of New York law, as amended
by the Housing Stability and Tenant Protection Act of
2019, are reprinted at App.227–88.
INTRODUCTION
The Takings Clause prevents the government
from stripping property owners of their right to
exclude others from their property—a right of “central
importance” to the very concept of property ownership.
Cedar Point Nursery v. Hassid, 594 U.S. 139, 150
(2021). The core question in this case is whether that
 2

fundamental protection applies to laws that effectively

nullify a landlord’s right to evict tenants—i.e., to
exclude third parties and repossess private property
as the owner’s “sole ... dominion,” which is “one of the
most treasured rights” of private property ownership.
Id. at 149 (quotation marks omitted). Under a proper
understanding of the Takings Clause and this Court’s
precedents, the answer to that question should be
easy: a taking is a taking, regardless of whether it can
be characterized as a regulation of the landlord-tenant
relationship. Governments do not have carte blanche
to transform private property into state-controlled
housing stock without just compensation.
Based on a misreading of this Court’s decision in
Yee v. City of Escondido, 503 U.S. 519 (1992), however,
a number of lower courts, including the Second and
Ninth Circuits, have held just the opposite—creating
a circuit split and opening a gaping hole in the Fifth
Amendment’s vital protections for private property.
Indeed, the Second Circuit has expressly carved out a
landlord-tenant exception to this Court’s recent
decisions in Cedar Point and Horne v. Department of
Agriculture, 576 U.S. 350 (2015), declaring that
“neither case is relevant given neither ‘concerns a
statute that regulates the landlord-tenant
relationship.’” App.7 (quoting Cmty. Hous.
Improvement Program v. City of New York, 59 F.4th
540, 553 (2d Cir.), cert. denied, 144 S. Ct. 264 (2023)).
As Justice Thomas recognized, this issue
warrants this Court’s intervention. 74 Pinehurst LLC
v. New York, 2024 WL 674658, at *1 (U.S. Feb. 20,
2024) (statement respecting denials of certiorari).
While Justice Thomas expressed concern that prior
 3

challenges to New York’s regime were too

“generalized,” id., this petition identifies specific
regulations that effect physical takings with respect to
specific Petitioners, whose allegations make clear how
their right to evict tenants has been eviscerated.
This petition also provides the Court with an
opportunity to reconsider Penn Central
Transportation Co. v. City of New York, 438 U.S. 104
(1978). If New York’s unprecedented regulatory
regime does not go “too far,” Horne, 576 U.S. at 360
(quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415
(1922)), it is difficult to imagine what would. The
decision below highlights the grave problems with
Penn Central’s “ad hoc” framework for assessing
regulatory takings, which has no basis in the text or
original understanding of the Constitution. Moreover,
in application it has become a rubber stamp for
confiscatory government policies, which was surely
never this Court’s intent.
STATEMENT
A. Background
1. New York’s “Temporary” Rent
Regulation Regime.
From a historical perspective, rent regulation in
the United States is a modern affair. Begun as an
emergency wartime measure, several cities and states
adopted temporary rent-control or eviction-control
measures in the World War I era. Zachary Bray, The
New Progressive Property and the Low-Income
Housing Conflict, 2012 B.Y.U. L. Rev. 1109, 1140
(2012). During World War II, the federal government
 4

briefly introduced rent controls as part of its general

wartime price-control program. Id.
Anticipating the withdrawal of federal rent
control following World War II, the State of New York
passed the Emergency Housing Rent Control Law in
1946 “to prevent speculative, unwarranted and
abnormal increases in rents.” 1946 N.Y. Laws, ch.
274, § 1 (reproduced at N.Y. Unconsol. Law § 8581 et
seq.). In 1962, the state legislature authorized
municipalities to enact rent regulations. Local
Emergency Housing Rent Control Act, 1962 N.Y. Laws
ch. 21, § 1 (reproduced at N.Y. Unconsol. Law § 8601
et seq.).
New York City did not adopt rent regulations
until 1969, when the City Council passed the Rent
Stabilization Law (“RSL”). N.Y.C. Admin. Code § 25-
501 et seq. Upon enacting the RSL, the City Council
declared that a “serious public emergency continues to
exist in the housing of a considerable number of
persons.” N.Y.C. Admin. Code § 25-501. The City
Council stated that “the transition from regulation to
a normal market of free bargaining between landlord
and tenant, while still the objective of state and city
policy, must be administered with due regard for such
emergency.” Id. Notably, this declaration of a public
emergency came just eight years after New York City
enacted restrictive zoning measures limiting both the
size of buildings and occupancy, thereby reducing the
City’s capacity to house people by four-fifths. 1

1 Mihir Zaveri, Why It’s So Hard to Find an Affordable

Apartment in New York, N.Y. Times (Aug. 1, 2022); N.Y. City
Planning Comm’n, Rezoning New York City: A Guide to the
 5

Notwithstanding its own contributions to the housing

shortage and the RSL’s stated policy objectives, the
City Council—as required—renewed its finding of a
“public emergency” triennially for half a century. N.Y.
Unconsol. Law § 8603.
2. The 2019 Amendments and Their
Effect on Petitioners’ Property.
With the passage of the Housing Stability and
Tenant Protection Act of 2019 (“the 2019 Act”), the
New York State Legislature abandoned any pretense
of ever returning to a free-market system. The 2019
Act is not premised on any “emergency.” Indeed, the
very purpose of the Act is to “[p]rovide permanent rent
regulation.” A08281 Memo, N.Y. STATE ASSEMBLY,
https://bit.ly/3MEgvPt (emphasis added). The Act
accomplishes this by repealing key provisions of the
RSL and adding draconian new restrictions, thereby
transforming what began as a temporary wartime
measure into a sweeping regime that converts private
property into public housing stock indefinitely.
First, lest there be any doubt as to the
Legislature’s desire to permanently enshrine rent
control, the 2019 Act repeals the sunset provisions
that required the Legislature to periodically
reconsider the need for “emergency” regulation. 2019
N.Y. Sess. Laws § 6458, Part A.
Second, the 2019 Act repeals the RSL’s “luxury
decontrol” provisions, which allowed landlords to

Proposed Comprehensive Amendment to the Zoning Resolution

of the City of New York (1959), available at https://archive.org
/details/rezoningnewyorkc00newy (describing the 1961 zoning
overhaul).
 6

remove a unit from the RSL’s rent-control and

eviction-control regime once the monthly rent reached
a specified value and the tenant vacated or once the
tenant’s income equaled or exceeded a statutory
threshold. Id. at Part D, § 5. At the same time, absent
a specific exception, rent-stabilized tenants retain the
right to renew their leases continually—and can pass
that right on to a wide range of successors (including
but not limited to relatives by blood or marriage), who
can in turn name their own successors, ad infinitum.
See N.Y. Comp. Codes R. & Regs. tit. 9, § 2523.5(a), (c)(1)
(renewal right); id. § 2520.6(o) (successor definition).
Third, the 2019 Act sharply restricts the
circumstances under which owners can reclaim rent-
regulated units for use as a primary residence,
limiting them to a single unit per building and then
only upon a showing of “immediate and compelling
necessity.” 2019 N.Y. Sess. Laws § 6458, Part I.
Before the 2019 Act, owners could recover more than
one unit to use as their own home and could do so
without demonstrating any “necessity,” let alone an
“immediate and compelling necessity.” See id.; Kokot
v. Green, 836 N.Y.S. 2d 493, 2007 WL 283081, at *5
(N.Y. Civ. Ct. 2007) (Table). Now, absent exigent
circumstances, tenants (and their designated
successors, in perpetuity) have the power to exclude
owners from the property the owners nominally own.
See N.Y.C. Admin. Code §§ 26-511(c)(9)(b), 26-
408(b)(1); N.Y. Comp. Codes R. & Regs. tit. 9,
§ 2524.4(a). This new rule applies even if the owner
already commenced the reclamation process in
reliance on the prior regime. 2019 N.Y. Sess. Laws
§ 6458 Laws, Part I § 5.
 7

Fourth, the 2019 Act prohibits owners from

converting rent-regulated and free-market rental
properties into cooperatives or condominiums without
majority tenant approval. Id. at Part N. Before the
2019 Act, property owners could exit the rental
market by securing purchase agreements for 15% of
their apartments, either from current tenants or bona
fide outside purchasers who intended to occupy units
upon vacancy. Then, as soon as tenants vacated the
unsold units, the landlords could sell those units too.
See N.Y. Gen. Bus. Law § 352-eeee (2018). Now,
however, a property owner can exit the rental market
via a condo/co-op conversion only by securing purchase
agreements for 51% of apartments, all from current
tenants. In other words, the tenants—not the
property owner—get to decide whether the owner can
convert its property. 2
Fifth, the 2019 Act significantly limits owners’
ability to account for rising costs through rent
increases, even where those increases would not
impact existing tenancies or lead to rents above the
government-sanctioned rate. Before the 2019 Act, for
example, owners could increase rents upon vacancy
subject to the approval of rent guideline boards. N.Y.
Unconsol. Law § 26-510. The 2019 Act, however,
repealed these provisions. 2019 N.Y. Sess. Laws
§ 6458, Parts B & C. The Act now caps annual rent

2 The year after the 2019 Act, the aggregate value of

condominium conversions fell 99% from $600 million to $6
million. See Steven L. Newman Real Estate Inst., Baruch Coll.,
CUNY, NYC Condominium and Cooperative Conversion:
Historical Trends and Impacts of the Law Changes 8 (May 5,
2021), available at https://tinyurl.com/284xca7r.
 8

increases for rent-controlled units at the average of

the previous five years of increases authorized for
rent-stabilized apartments and precludes property
owners from adjusting rents to account for rising fuel
costs. Id. at Part H. The 2019 Act even penalizes
owners who had voluntarily offered a “preferential
rent” (i.e., a rent below the legal regulated rent) by
prohibiting those owners from raising rent to the full
government-sanctioned rate upon renewal, even if the
owner agreed to the discount before the 2019 Act took
effect. See id. at Part E.
Sixth, the 2019 Act handicaps owners’ ability to
invest in the upkeep of their properties by limiting
rent increases that account for renovations and
improvements. In addition to limiting rent increases
generally, the Act significantly lowers the rent
increase cap for major capital improvements
(“MCIs”)—such as the installation of a new roof,
elevators, or boilers—and eliminates increases for
MCIs altogether for buildings comprised less than
35% of regulated units. 2019 N.Y. Sess. Laws § 6458,
Part K. Further, the 2019 Act makes these rent
increase caps retroactive by applying the new caps to
any MCIs approved since June 2012. Id. at Part K,
§ 5. For individual apartment improvements—such
as new appliances, flooring, or air conditioners—
property owners can increase rents only in the amount
of $15,000 per apartment over a 15-year period. Id.
There is no exception for substantial renovations, like
plumbing projects, which are typically necessary after
a long tenancy. Landlords unable to absorb costs in
excess of $15,000 over a 15-year period will need to
either offer subpar units or take units off the market.
 9

Neither option furthers the Legislature’s goal of

maintaining quality, affordable housing stock.
Seventh, the Act imposes other significant new
limits on evictions for both rent-regulated and non-
regulated apartments. These amendments, inter alia,
extend the period for staying evictions from six
months to a year and require the court to vacate an
eviction warrant if the tenant pays the full amount of
unpaid rent at any time before an eviction warrant’s
execution (unless the landlord can prove that the
tenant withheld the rent in bad faith). Id. at Part M,
§§ 5, 19, 21, 25.
Petitioners Jane Ordway and Dexter Guerrieri
own an eight-unit apartment building in Brooklyn.
App.189 ¶ 168. The other Petitioners are small
businesses that each own small to mid-size apartment
buildings in New York City and Yonkers. App.144–49
¶¶ 22–40.
The 2019 Act has substantially infringed on the
property rights of all Petitioners. App.176 ¶ 127.
Take Ms. Ordway and Mr. Guerrieri. After devoting
considerable time and expense to repairing their
eight-unit building, the two decided to recover a first
and second floor unit for themselves. App.190–91
¶ 170–71. Rather than continue living in two units
separated by a public hallway, Ms. Ordway and Mr.
Guerrieri planned to consolidate units on the first two
floors of the building into their long-term home by also
recovering the first-floor garden unit upon the
expiration of its tenant’s lease. App.190–91 ¶ 171.
But the garden unit’s tenant—a successful
businessman and professional athlete—refused to
vacate when his lease expired. App.191 ¶ 172. And
 10

while Ms. Ordway and Mr. Guerrieri initiated owner-

occupancy holdover proceedings in September 2018,
which had progressed past the midway point by June
2019, the Act’s new restrictions forced an abrupt end
to Ms. Ordway’s and Mr. Guerrieri’s previously lawful
consolidation efforts. App.191–92 ¶ 173. Because of
the 2019 Act, Ms. Ordway and Mr. Guerrieri cannot
recover their own property for their personal use.
Petitioners are also struggling to operate their
small residential buildings for even a marginal profit.
The 2019 Act’s elimination of rent increases upon
vacancy and limits on recoverable spending for
improvements have forced both 181 W. Tremont
Associates, LLC, and 125 Holding LLC to take
deteriorating units off the market, and Brooklyn 637-
240 and 447-9 16th LLC will need to do the same soon.
App.184 ¶ 154; App.194–96 ¶¶ 180–85; App.197–98
¶ 190. And, thanks to the 2019 Act’s nearly impossible
requirements for co-op/condo conversions, Petitioners
can no longer avail themselves of that alternative.
While several Petitioners believed their buildings
were suitable for conversion into co-ops or
condominiums and had anticipated carrying out such
conversions, that option is no longer feasible due to the
2019 Act’s requirement of majority tenant approval.
See, e.g., App.171 ¶¶ 113–15; App.182 ¶ 149; App.187–
88 ¶ 163; App.195 ¶ 181; App.196 ¶ 186.
B. Proceedings Below
Petitioners filed suit in the Southern District of
New York on January 23, 2020, alleging, inter alia,
that the Act effected a taking both facially and as
applied. The District Court had jurisdiction under 28
U.S.C. § 1331. The District Court dismissed
 11

Petitioners’ complaint, and Petitioners timely

appealed.
The Second Circuit affirmed the dismissal of
Petitioners’ claims. The court found no physical
taking because Petitioners entered the rental market
voluntarily (albeit long before the 2019 Act) and can
(at least in theory, albeit under very limited
circumstances) evict tenants. See App.6–7. As in the
Second Circuit’s prior decision in Community
Housing, the court emphasized Yee’s statement that
localities have “broad power to regulate housing
conditions in general and the landlord-tenant
relationship.” App.6 (quoting Yee, 503 U.S. at 528–
29). Because neither the co-op/condo conversion
amendments nor the extreme limitations on owner
reclamation were completely “unconditional”
impediments to owners’ exercise of their rights, the
court held, they could not constitute physical takings.
App.7 (quoting Cmty. Hous., 59 F.4th at 552). The
court also stated that Petitioners’ “reliance on Cedar
Point ... and Horne” was “misplaced because neither
case is relevant given [that] neither ‘concerns a statute
that regulates the landlord-tenant relationship.’”
App.7 (quoting Cmty. Hous., 59 F.4th at 553).
With respect to Petitioners’ as-applied physical
takings claims, the court focused on Ms. Ordway and
Mr. Guerrieri’s efforts to recover their property for
personal use. The court observed that the 2019 Act
allows a landlord to terminate a tenant’s lease on
several grounds, “such as for failing to pay rent,
creating a nuisance, violating the lease, or using the
property for illegal purposes.” App.8 (quoting
74 Pinehurst LLC v. New York, 59 F.4th 557, 563 (2d
 12

Cir. 2023)). Ignoring the fact that all of those grounds

are beyond the landlord’s control—and without
identifying any ground that would be available to
Petitioners—the court asserted that Petitioners had
failed to plead an as-applied physical takings claim
because they had not “demonstrated that they have
attempted to use all available methods to either exit
the rental market or evict tenants.” App.8. The court
did not separately address the as-applied physical
takings claims of the Petitioners who had been
effectively foreclosed from pursuing condo/co-op
conversions.
Applying Penn Central’s “flexible ‘ad hoc’” test,
the court also affirmed the dismissal of Petitioners’
regulatory takings claims. App.9. With respect to the
facial regulatory takings claim, the court concluded
that Petitioners had not plausibly alleged that every
owner of a rent-stabilized property had suffered an
adverse economic impact or an interference with
investment-backed expectations and that “the
character of the government action sought to promote
general welfare and public interest through a
‘comprehensive regulatory regime that governs nearly
one million units,’” App.9 (quoting Cmty. Hous., 59
F.4th at 555)—as if the sheer scale or purported intent
of a taking could render it not a taking. Regarding the
as-applied regulatory takings claims, the court agreed
with the District Court’s finding that certain of
Petitioners’ claims were not prudentially ripe because
of the potential availability of hardship exemptions for
modest rent increases and because of the theoretical
possibility that a landlord could get majority tenant
approval for a condo/co-op conversion. App.10–11. On
the merits, the court below acknowledged that
 13

Petitioners “alleged specific facts” showing a negative

economic impact, but the court reasoned that any
reasonable investor would have anticipated the
possibility of regulatory changes and that the
character of the legislation, which had the stated
purpose of serving the public interest, “weighs
strongly against [Petitioners’] claims.” App.11–12.
REASONS FOR GRANTING THE PETITION
I. The Second Circuit’s Decision Deepens A
Circuit Split Regarding The Physical
Takings Doctrine.
A. Courts Are Divided Over Whether
Regulations That Generally Prohibit
Landlords From Evicting Tenants
Constitute a Physical Taking.
The Second Circuit has now held four times that
“limitations on the termination of a tenancy do not
effect a taking so long as there is a possible route to an
eviction.” 335-7 LLC v. City of New York, 2023 WL
2291511, at *2 (2d Cir. Mar. 1, 2023) (quoting Cmty.
Hous., 59 F.4th at 552), cert. denied, 2024 WL 674658
(U.S. Feb. 20, 2024); accord Pinehurst, 59 F.4th at 563;
App.6–8. The Ninth Circuit has likewise determined
that the government does not inflict a physical taking
by forcing a property owner to continue tenancy after
the expiration of the parties’ lease agreement, at least
where the law allows for some at-fault evictions.
Kagan v. City of Los Angeles, 2022 WL 16849064, at
*1 (9th Cir. Nov. 10, 2022), cert. denied, 144 S. Ct. 71
(2023).
The Eighth Circuit, in Heights Apartments, LLC
v. Walz, arrived at the exact opposite conclusion. 30
 14

F.4th 720, 733 (8th Cir. 2022). There, the court found
a physical taking where an eviction moratorium
“forbade the nonrenewal and termination of ongoing
leases, even after they had been materially violated,
unless the tenants seriously endangered the safety of
others or damaged property significantly.” Id. In
other words, the Eighth Circuit concluded that a law
authorizing lease renewal against a landlord’s wishes
gives rise to a per se physical taking even where, as
here, landlords retain a possible route to eviction.
The fault line is the proper application of this
Court’s physical takings precedent, specifically Yee v.
City of Escondido, 503 U.S. 519 (1992).
Notwithstanding Yee’s acknowledgment that a
“different case would be presented were the statute,
on its face or as applied, to compel a landowner over
objection to rent his property or to refrain in
perpetuity from terminating a tenancy,” id. at 528, the
Second and Ninth Circuits interpret Yee as foreclosing
a physical takings claim where an owner voluntarily
placed his property on the rental market and any
route to eviction—no matter how theoretical and
unlikely—remains. App. 6–8; Cmty. Hous., 59 F.4th
at 552; Kagan, 2022 WL 16849064, at *1. 3

3District courts have adopted similar interpretations of Yee—

while recognizing the conflict with the Eighth Circuit. See, e.g.,
Pakdel v. City & County of San Francisco, 636 F. Supp. 3d 1065,
1073–74 (N.D. Cal. 2022); Williams v. Alameda County, 642 F.
Supp. 3d 1001, 1016–20 (N.D. Cal. 2022); Gallo v. District of
Columbia, 610 F. Supp. 3d 73, 87 (D.D.C. 2022). As the Williams
court later observed in assessing a petition for interlocutory
appeal, “there is a circuit split” on how to apply Yee and Cedar
Point to housing laws and “there are substantial grounds for
 15

For its part, the Eighth Circuit distinguished Yee

because the rent controls at issue in Yee limited the
amount of rent landlords could charge but allowed
landlords to evict tenants after a notice period (even
without cause). See Heights Apartments, 30 F.4th at
733; Yee, 503 U.S. at 527–28 (“[N]either the city nor
the State compels petitioners, once they have rented
their property to tenants, to continue doing so”). The
Eighth Circuit therefore applied Cedar Point’s holding
that “[w]henever a regulation results in a physical
appropriation of property, a per se taking has
occurred.” Heights Apartments, 30 F.4th at 733
(quoting Cedar Point, 594 U.S. at 149).
The Court should grant this petition to clarify
that Yee does not foreclose a physical takings claim
just because a regulation preserves a narrow,
theoretical path to eviction—dependent on
circumstances outside the landlord’s control, such as
whether the tenant “us[es] the property for illegal
purposes,” App.8 (quoting Pinehurst, 59 F.4th at
563)—where the regulation as a practical matter
deprives owners of their fundamental right to exclude
tenants from what nominally is the owner’s property.
B. The Second Circuit Is on the Wrong Side
of This Circuit Split.
With its most recent decision, the Second Circuit
dug its heels further into the wrong side of this circuit
split. This Court clarified just two terms ago that
“[g]overnment action that physically appropriates
property is no less a physical taking because it arises

difference of opinion” on that question. Williams v. Alameda

County, 657 F. Supp. 3d 1250, 1256 (N.D. Cal. 2023).
 16

from a regulation.” Cedar Point, 594 U.S. at 149.

Rather, the “essential question” when considering a
physical taking is “whether the government has
physically taken property for itself or someone else—
by whatever means—or has instead restricted a
property owner’s ability to use his own property.” Id.;
see also Sheetz v. County of El Dorado, __ S. Ct. __,
2024 WL 1588707, at *4 (U.S. Apr. 12, 2024)
(“[I]nterfer[ing] with the owner’s right to exclude
others ... is a per se taking.”).
That approach makes sense “because our
Constitution deals in substance, not form.” Id. at *8
(Gorsuch, J., concurring). As in Cedar Point, the law
here works a physical taking because it “appropriates
for the enjoyment of third parties the owners’ right to
exclude.” 594 U.S. at 149. Nowhere is that physical
taking more obvious than in the government’s taking
of Ms. Ordway’s and Mr. Guerrieri’s property. Before
the 2019 Act, they were entitled to recover a unit for
their own personal use and had begun proceedings to
do so. The Act, however, has given another person an
exclusive right to occupy that unit—to prevent the
owners from living in their own property. As this
Court has explained, no matter how minimal the
invasion, “[t]o require ... that the owner permit
another to exercise complete dominion literally adds
insult to injury.” Loretto v. Teleprompter Manhattan
CATV Corp., 458 U.S. 419, 436 (1982). If stringing a
cable across property is a physical taking, then there
is no doubt that giving a third party the right to enter
an owner’s property and live there indefinitely is a
physical taking.
 17

What makes no sense is the Second and Ninth

Circuits’ insistence on evaluating a physical taking
based on an owner’s original decision to enter the
rental market (no matter how many decades ago) and
whether the regulatory scheme preserves some
pathway for landowners to end a tenancy (no matter
how unlikely or outside of the owner’s control). See
App.6 (citing Cmty. Hous., 59 F.4th at 551); Kagan,
2022 WL 16849064, at *1. This Court has already
rejected the idea that a physical taking cannot occur
where someone made a voluntary choice to enter the
regulated market. Horne, 576 U.S. at 365 (“‘Let them
sell wine’ is probably not much more comforting to the
raisin growers than similar retorts have been to others
throughout history.”). To the contrary, “a landlord’s
ability to rent his property may not be conditioned on
his forfeiting the right to compensation for a physical
occupation.” Loretto, 458 U.S. at 439 n.17.
The notion that a property owner’s right to
exclude can be eviscerated as long as there are some
circumstances in which eviction may be legally
possible is similarly untenable. See App.8 (reasoning
that New York law allows Petitioners to evict on
“several bases” beyond their control, such as if a
tenant fails to pay rent or commits illegal acts (quoting
Pinehurst, 59 F.4th at 563)). In contrast to the Second
Circuit’s assumption that a regulation can effect a
physical taking only if the regulation is
“unconditional” (i.e., unbounded), App.7 (quoting
Cmty. Hous., 59 F.4th at 552), this Court has held that
the rule against physical takings applies regardless of
circumstances such as the size of the space invaded,
Loretto, 458 U.S. at 435, the length of the invasion,
Cedar Point, 594 U.S. at 152; or the nature of the
 18

property (be it real or personal), Horne, 576 U.S. at

361. In Cedar Point, the labor organizers’ right of
access to the owners’ property applied only “when
certain conditions [were] met.” App.7 (quoting Cmty.
Hous., 59 F.4th at 552); see Cedar Point, 594 U.S. at
166 (Breyer, J., dissenting) (summarizing set of
“detailed regulations that describe and limit the
access at issue,” including limits on duration and a bar
on “disruptive” conduct (quotation marks omitted)).
Despite acknowledging those conditions on the access
right, the Court held that “a per se taking has
occurred.” Cedar Point, 594 U.S. at 143–49. Here, the
rule against physical takings should likewise apply
regardless of whether a landlord has some remote and
theoretical means of evicting a tenant.
Properly understood, Yee is consistent with Cedar
Point, Horne, and Loretto. In Yee, the challenged
regulations allowed landlords to evict tenants after a
notice period, even without cause. 503 U.S. at 528
(citing Cal. Civ. Code § 798.56(g)). The Court
specifically cautioned that “[a] different case would be
presented were the statute, on its face or as applied,
to compel a landowner over objection to rent his
property or to refrain in perpetuity from terminating
a tenancy.” Id. That is just what New York has done
with its owner-reclamation and condo/co-op
conversion regulations.
Contrary to the reasoning of the Second and
Ninth Circuit, Yee did not establish an exception to
physical takings doctrine for laws that purport to
regulate the landlord-tenant relationship. See App.6–
8; Kagan, 2022 WL 16849064, at *1. “The essential
question is not, as the Ninth [and Second] Circuit[s]
 19

seemed to think, whether the government action at

issue comes garbed as a [landlord-tenant]
regulation[.]” Cedar Point, 594 U.S. at 149. Whether
the beneficiary of the government action is a labor
organizer, a tenant, or anyone else, what matters is
that “the regulation appropriates for the enjoyment of
third parties the owners’ right to exclude.” Id.
II. The Second Circuit’s Regulatory Takings
Holding Also Warrants Review.
The Second Circuit also dismissed Petitioners’
claims that the 2019 Act constitutes a regulatory
taking under Penn Central. This holding is incorrect
and, by highlighting how malleable the Penn Central
test has become, invites this Court to revisit Penn
Central and clarify when a regulatory taking occurs.
A. The Second Circuit’s Regulatory
Takings Decision Is Wrong.
Had the Second Circuit properly applied Penn
Central, it would have concluded that Petitioners
stated a claim for a regulatory taking. Under the Penn
Central test, courts consider “the character of the
governmental action” along with the “economic impact
of the regulation,” including “the extent to which the
regulation has interfered with distinct investment-
backed expectations.” Penn Cent., 438 U.S. at 124.
To begin with, the government action here has all
the trappings of a taking. The “central purpose of the
Takings Clause” is to “‘bar Government from forcing
some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as
a whole.’” Murr v. Wisconsin, 582 U.S. 383, 405–06
(2017) (quoting Armstrong v. United States, 364 U.S.
 20

40, 49 (1960)). The Act forces Petitioners to

disproportionately bear the cost of what is essentially
a government-sponsored affordable housing initiative.
As the title of the 2019 Act—the Housing Stability and
Tenant Protection Act—demonstrates, New York City
wanted to protect tenants from having to pay higher
rents and wanted to “stabili[ze]” the supply of rental
housing by preventing landlords from taking units off
the rental market. And the City wanted to do all of
that without incurring any cost itself, so it foisted the
costs of these “public burdens” off onto property
owners.
What’s more, Petitioners specifically alleged that
the Act’s draconian restrictions on rent increases and
eviction would be counterproductive. As Petitioners
explained, the Act will “exacerbate any housing
shortage because tenants will be further
disincentivized from giving up their apartments and
moving as market conditions shift, because units will
be permanently rent-regulated at absurdly reduced
rents, and because it will be too expensive for
developers to build new units because of all of the
market distortions caused by rent regulation.”
App.135–36 ¶ 4. Individual Petitioners even alleged
that they had been forced to take deteriorating units
off the market because of limitations on rent increases
for improvements and other burdens imposed by the
Act. See, e.g., App.184 ¶ 154; App.188–89 ¶ 166. Like
the Eighth Circuit in Heights Apartments, at the
pleading stage, the Second Circuit should have
accepted allegations like these as true rather than
assuming that government action would be beneficial.
See 30 F.4th at 734.
 21

The Second Circuit focused instead on what it

presumed to be the government’s good intentions.
App.9 (“[T]he government action sought to promote
general welfare and public interest”); App.12
(concluding that “[t]he character of the governmental
action ... weighs strongly against [Petitioners’] claims”
because the Act “is concerned with ‘broad public
interests’” (quoting Cmty. Hous., 59 F.4th at 555)).
That approach, which accepts the government’s own
description of the “character of the government action”
on faith, would “relegat[e] [the Takings Clause] ... to
the status of a poor relation.” Sheetz, 2024 WL
1588707, at *7 (quoting Dolan v. City of Tigard, 512
U.S. 374, 392 (1994)). Nearly every taking of private
property will come wrapped in some public purpose,
and a “strong public desire to improve the public
condition is not enough to warrant achieving the
desire by a shorter cut than the constitutional way.”
Horne, 576 U.S. at 362 (quotation marks omitted).
As for economic impact, the Second Circuit was
forced to acknowledge that Petitioners had “alleged
specific facts in their complaints tending to show a
negative economic impact.” App.11. Yet the court
held that “loss of profit” was “insufficient”—without
explaining what would be sufficient under this factor.
App.11 (quotation marks omitted). After all,
Petitioners described economic harms including but
not limited to sharp declines in rental income and
“dramatic[ ]” devaluation of property. App.164–65
¶¶ 91–92; App.172 ¶ 119; App.208 ¶ 224. That the Act
deprives Petitioners of rental income needed to
maintain their properties in marketable condition,
and tanks the value of their real estate, should have
been sufficient to plead economic harm weighing in
 22

favor of a regulatory taking. See Heights Apartments,

30 F.4th at 734 (finding deprivation of rental income
sufficient to establish this factor).
The Second Circuit also gave short shrift to
Petitioners’ reasonable investment-backed
expectations. Petitioners alleged that they had
invested considerable sums in their properties, not
only to purchase them to but to make major
improvements to previously rundown structures. See,
e.g., App.190, 194, 195–96, 198–99 ¶¶ 170, 179, 184,
194. When Petitioners made these investments, they
could not reasonably have foreseen such a dramatic,
unprecedented shift in the regulatory environment—
a new regime that the enactors of the 2019 Act touted
as the most stringent “in history.” App.141–42 ¶¶ 15–
16. Yet the Second Circuit opined that because the
RSL had “changed many times” over the years, “any
reasonable investor” would have anticipated the RSL’s
radical transformation in 2019. App.12.
In dismissing Petitioners’ claims, the Second
Circuit “abandon[ed] the guiding principle of the
Takings Clause that ‘public burdens ... should be
borne by the public as a whole.’” Pennell v. City of San
Jose, 485 U.S. 1, 22 (1988) (Scalia, J., concurring in
part and dissenting in part) (quoting Armstrong, 364
U.S. at 49). And it underscored just how meaningless
the Penn Central test has become as a constraint on
regulatory takings.
B. The Court Should Overrule Penn
Central or Clarify the Proper Standard.
As the foregoing illustrates, the Second Circuit
interpreted Penn Central so narrowly as to render it a
 23

dead letter. If the Second Circuit’s approach is viewed

as faithful to Penn Central, then it is time for this
Court to overrule that opinion. This Court’s stare
decisis factors only confirm that Penn Central is ripe
for repudiation. The decision was poorly reasoned, its
multi-factor test is unworkable, it is inconsistent with
other takings decisions and constitutional
developments since, and the lack of clarity
surrounding Penn Central undermines any claim of
reliance. See Janus v. Am. Fed. of State, County, &
Mun. Emps., 585 U.S. 878, 916–17 (2018).
Penn Central was never meant to be a definitive
legal interpretation of the Takings Clause. It was not
even meant to announce “a set formula for
determining when justice and fairness require that
economic injuries caused by public action be
compensated by the government.” 438 U.S. at 124
(quotation marks omitted). Rather, as explained in
Penn Central, the Court was “engaging in …
essentially ad hoc, factual inquiries” to determine
whether a taking occurred, and the factors identified
were just “several factors that have particular
significance.” Id. To elevate the multi-factor Penn
Central inquiry to the status of a definitive
constitutional test is to ignore the decision itself. 4

4 Indeed, as one casebook has observed, “[c]lose reading of the

opinion must cope with the report by Justice Brennan’s law clerk
... that it ‘was basically written Memorial Day weekend in three
consecutive near all-nighters.’” Sara C. Bronin & J. Peter Byrne,
Historic Preservation Law 360 (2d ed. 2021) (quoting Transcript,
Looking Back on Penn Central: A Panel Discussion with the
Supreme Court Litigators, 15 Fordham Env’t L. Rev. 287, 302
(2004)).
 24

As myriad jurists and commentators have noted,

the ad hoc Penn Central inquiry is unworkable. More
than 35 years ago, Justice Stevens described this
Court’s regulatory-takings jurisprudence as “open-
ended and standardless.” First English Evangelical
Lutheran Church v. County of Los Angeles, 482 U.S.
304, 340 n.17 (1987) (Stevens, J., dissenting); see also
Dist. Intown Props. Ltd. P’ship v. District of Columbia,
198 F.3d 874, 886 (D.C. Cir. 1999) (Williams, J.,
concurring) (“Few regulations will flunk this nearly
vacuous test.”). And, as Justice Thomas explained just
a few years ago, no one has figured out the test in the
interim: “nobody—not States, not property owners,
not courts, nor juries—has any idea how to apply this
standardless standard.” Bridge Aina Le’a, LLC v.
Haw. Land Use Comm’n, 141 S. Ct. 731, 731 (2021)
(Thomas, J., dissenting from denial of certiorari).
Penn Central is markedly out of step with this
Court’s constitutional jurisprudence. Consider this
Court’s Second Amendment decision in New York
State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
There, the Court held “that when the Second
Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that
conduct.” Id. at 17. The government cannot justify a
regulation by “simply posit[ing] that the regulation
promotes an important interest” but rather “must
demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.” Id.
This “standard accords with how we protect other
constitutional rights.” Id. at 24. “[W]hen the
Government restricts speech, the Government bears
the burden of proving the constitutionality of its
 25

actions.” United States v. Playboy Ent. Grp., Inc., 529

U.S. 803, 816 (2000). Where “a litigant asserts the
right in court to ‘be confronted with the witnesses
against him,’ we require courts to consult history to
determine the scope of that right.” N.Y. State Rifle &
Pistol Ass’n, 597 U.S. at 25 (quoting U.S. Const.
amend. VI). And “when a litigant claims a violation of
his rights under the Establishment Clause, Members
of this Court ‘loo[k] to history for guidance.’” Id.
(quoting Am. Legion v. Am. Humanist Ass’n, 588 U.S.
29, 32 (2019) (plurality opinion)). The ad hoc Penn
Central multi-factor balancing test is woefully at odds
with how this Court treats other constitutional
protections. See Nekrilov v. City of Jersey City, 45 F.4th
662, 686–87 (3d Cir. 2022) (Bibas, J., concurring) (noting
that Penn Central is “hard to square” with the original
understanding of the Takings Clause and outlining an
alternative test grounded in history).
Finally, reliance interests are weak. As Penn
Central made clear, it is effectively an ad hoc, fact-
specific inquiry that provides little guidance to
regulators or regulated parties. The Court has
expressly “eschewed ‘any set formula’” that might
establish a stable rule of law. Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Reg’l Planning
Agency, 535 U.S. 302, 336 (2002) (quoting Penn Cent.,
438 U.S. at 124). The doctrine is effectively “[a] know-
it-when-you-see-it test” that “invites unprincipled,
subjective decisionmaking dependent upon the
decisionmaker.” Bridge Aina Le’a, 141 S. Ct. at 732
(Thomas, J., dissenting from denial of certiorari)
(quotation marks omitted).
 26

III. This Case Provides An Excellent Vehicle To

Address Two Exceptionally Important
Issues.
A. This Case Is an Excellent Vehicle to
Address When Restrictions on Eviction
Effect a Physical Taking.
This case squarely implicates a significant
constitutional issue that has divided the lower courts:
whether regulations that prevent a landlord from
evicting a tenant, except for reasons beyond the
landlord’s control, effect a physical taking. As Justice
Thomas has observed, “[t]he constitutionality of
regimes like New York City’s is an important and
pressing question” on which this Court “should grant
certiorari” in “an appropriate future case.” Pinehurst,
2024 WL 674658, at *1 (Thomas, J., statement
respecting denials of certiorari).
That “appropriate future case” has now arrived.
Id. While Justice Thomas suggested that prior
challenges to New York’s regime may have been too
“generalized” to facilitate proper review, Petitioners
have identified “specific New York City regulations”
that “prevent [them] from evicting actual tenants for
particular reasons.” Id. For example, as discussed,
the 2019 owner-occupancy amendments effectively
nullified Ms. Ordway’s and Mr. Guerrieri’s efforts to
reclaim a garden unit in their building for use as part
of their long-term home. App.189–93 ¶¶ 168–76. Ms.
Ordway and Mr. Guerrieri wish to evict the current
tenant, an affluent businessman and professional
athlete, from their rent-stabilized unit so that they
can occupy it themselves. See id. The couple was
pursuing proceedings to recover the unit until those
 27

efforts were short-circuited by the 2019 Act, which

prohibits owners from reclaiming a dwelling unit
absent an “immediate and compelling necessity.”
App.191–92 ¶ 173 (quotation marks omitted). As a
result, they have been excluded indefinitely from their
own property. Id.
In addition, several Petitioners have specifically
alleged that the condo/co-op conversion amendments
prevent them from carrying out contemplated
conversions of specific buildings. See, e.g., App.171
¶¶ 113–15; App.182–83 ¶ 149; App.1877–88 ¶ 163;
App.195 ¶ 181; App.196 ¶ 186. While these
Petitioners believed their buildings were suitable for
conversion, the 2019 Act effectively foreclosed that
option by granting current tenants a collective veto
right. Like Ms. Ordway and Mr. Guerrieri, and as
New York no doubt intended, these landlords have no
choice but to continue renting.
By contrast, the allegations in prior challenges
were not as specific or as robust. In Pinehurst, for
example, the complaint alleged only that one owner
had made an unsuccessful attempt at reclamation in
2011, many years before the 2019 Act, and that the
owner’s sister had “considered” occupying a rent-
stabilized unit in the building. BIO at 16, 2024 WL
674658 (No. 22-1130). In 335-7 LLC, “no petitioner
allege[d] that it wishes to exit the rental market or
that the RSL has stopped it from doing so.” BIO at 14,
2024 WL 674658 (No. 22-1170). Here, several
Petitioners have alleged that they wish to exit the
rental market, whether through reclamation for
personal use or condo/co-op conversions, and that the
2019 Act has prevented them from taking that course.
 28

Thus, this petition cleanly presents the issue left

open in Yee: whether a law that “compel[s] a
landowner over objection to rent his property or to
refrain in perpetuity from terminating a tenancy”
effects a physical taking. Yee, 503 U.S. at 528. That
some for-cause evictions remain available under the
2019 Act does not bring the Second Circuit’s decision
within Yee’s ambit. The challenged scheme in Yee
permitted not only for-cause evictions, but also, as the
Court emphasized, evictions with six or twelve
months’ notice without cause. Id. Thus. the landlords
in Yee were not compelled to continue renting their
property indefinitely. The 2019 Amendments, in
contrast, provide no such escape hatch: a tenant,
unless she commits a crime or creates a nuisance in
the apartment, can live in the owner’s apartment as
long as she wishes—and can designate a successor to
live in it afterward. All the while, the landlord is
excluded from what is purportedly her own property.
Nor is there any way to avoid the reality of a
deepening circuit split by somehow reconciling the
Second and Ninth Circuits’ position with the Eighth’s.
As discussed, the challenged regulations in Heights
allowed for the eviction of tenants under narrow
circumstances. 30 F.4th at 724. But the Eighth
Circuit still held that the plaintiffs alleged a per se
physical taking under Cedar Point because the
regulatory scheme turned every lease “into an
indefinite lease, terminable only at the option of the
tenant.” Id. (quotation marks omitted). On materially
indistinguishable facts, the Second Circuit came to the
opposite conclusion. This case thus offers an excellent
vehicle for this Court to resolve the split.
 29

B. This Case Is an Excellent Vehicle to

Clarify the Standards Applicable to
Regulatory Takings.
This case is also an ideal vehicle to clarify the
standards applicable to regulatory takings. Because
it arises from a motion to dismiss, the facts are not in
dispute and the errors in the Second Circuit’s Penn
Central analysis are purely legal. As the Second
Circuit acknowledged, Petitioners have alleged
specific facts detailing the economic and practical
impact of specific regulations. And while the ad hoc
Penn Central “test” may be too much of a muddle to
lend itself to a square, explicit circuit split, it is widely
acknowledged to be so amorphous as to provide no
meaningful guidance, such that courts reach divergent
results on similar facts. That is all the more reason
for the Court to grant this petition; “[a] know-it-when-
you-see-it test is no good if one court sees it and
another does not.” Bridge Aina Le’a, 141 S. Ct. at 732
(Thomas, J., dissenting from denial of certiorari).
C. The Issues Are Pressing and
Exceptionally Important.
The Takings Clause is the most critical protection
that our Constitution gives property owners. But the
Second Circuit’s decision defines physical and
regulatory takings so narrowly as to render the
Takings Clause virtually inapplicable to landlords.
The Second Circuit’s misguided approach will
have an outsized effect. For one thing, New York City
is the nation’s largest rental market, with roughly one
million rent-stabilized units. Many of these units’
owners are individuals and small businesses like
 30

Petitioners. Forcing this small portion of the

population to shoulder the burden of a very public
crisis is not only antithetical to the Takings Clause but
detrimental to the affordable-housing cause itself.
Indeed, as a result of the 2019 Act’s draconian caps on
rent increases, many individuals and small businesses
have simply chosen to leave their units vacant. See
Sam Rabiyah, NYC Had 88,830 Vacant Rent-
Stabilized Apartments Last Year, City Housing Agency
Estimates, The City (Oct. 20, 2022), https://bit.ly/
3WEdPpC.
The impact of this case also extends well beyond
New York City. Jurisdictions across the country are
advancing rent and eviction controls. See, e.g., Cal.
Civ. Code § 1946.2; D.C. Code § 42-3505.01; Or. Rev.
Stat. § 90.427; H.3744, 193d Gen. Ct. (Mass. 2023)
(proposed Boston regulation); Regs. of Berkeley Rent
Bd., ch. 12, subch. C, § 1274.5 (Cal.); Santa Monica
Reg., ch. 4 subch. G, § 4107 (Cal.). Even the White
House has advocated for national “just- or good-cause
eviction protections.” Domestic Pol’y Council & Nat’l
Econ. Council, The White House Blueprint for a
Renters Bill of Rights 16 (Jan. 2023).
This Court’s review is necessary to resolve a clear
circuit split over when a physical taking occurs in the
landlord-tenant context and to address the confusion
clouding the application of the Takings Clause to
regulatory takings. Property owners like Petitioners
are entitled to meaningful protection under the
Takings Clause—not to have the lower courts read
that fundamental protection out of existence
whenever a government acts to benefit tenants at
property owners’ expense.
 31

CONCLUSION
The Court should grant this petition for certiorari.
Respectfully submitted,
Jeffrey S. Bucholtz Randy M. Mastro
Amy R. Upshaw Counsel of Record
Alexander Kazam Leigh M. Nathanson
Zoe M. Beiner KING & SPALDING LLP
KING & SPALDING LLP 1185 Ave. of the Americas
1700 Pennsylvania Ave. NW 34th Floor
Suite 900 New York, NY 10036
Washington, DC 20006 (212) 556-2100
rmastro@kslaw.com
Counsel for Petitioners
April 18, 2024