(concurring):
I concur in the affirmance of the order dismissing the complaint and join in Judge Moore’s reasoning with respect to plaintiffs’ third and fourth causes of action under § 1983. I believe, however, that the first and second causes of action ought to be dismissed for reasons other than those relied on by Judge Moore.
I
Part V of Judge Moore’s opinion holds that the second and third causes of action in the Ellentuck complaint are barred by res judicata and collateral estoppel, as well as by comity. I do not agree that res judicata or collateral estoppel principles are applicable to those counts on the facts of this case; the very facts that seem to me to make these doctrines inapt serve also to emphasize the magnitude of the interference with New York courts’ interpretation of New York law that would be entailed by a federal court’s hearing the plaintiffs’ claims at this time.
Under New York law, a court’s determination that it has subject matter jurisdiction over a case is a bar to collateral attack on the judgment in that case only if the decision as to jurisdiction turned on a question of fact. If the conclusion was purely one of law, then it is always open to subsequent challenge. Friedman v. State, 24 N.Y.2d 528, 536, 301 N.Y.S.2d 484, 490-91, 249 N.E.2d 369 (1969).
Plaintiffs’ contention herein has consistently been phrased in terms of an attack on the jurisdiction of the New York courts and agencies to render the decisions they did. We are presented with assertions concerning the effect of the New York Multiple Dwelling Law (specifically sections 56 and 310) and the New York City Administrative Code (specifically section 666(6)-2) — the merits of which I do not address — which, if true, would certainly lead one to doubt the jurisdiction of the Board of Standards and Appeals to act as it did. None of the state court opinions in this case reached these statutory questions.
Because I regard plaintiffs’ second cause of action as an attack on the jurisdiction of the state bodies to act as they did, and because the courts’ decisions that the BSA had jurisdiction to grant the variance (and their implicit decisions that they could validate the BSA’s actions) turned on questions of law rather than of fact, I do not believe that count II1 of the instant § 1983 action *432is barred by res judicata or collateral estop-pel.2
Nonetheless, I agree that the action should be dismissed. Plaintiffs’ claims concern a denial of due process by New York courts and agencies based on the failure of these entities to observe the requirements of New York law. The interrelationship of the Multiple Dwelling Law, the Zoning Resolution and the Administrative Code is obscure, and it is an obscurity that I do not believe we should attempt to clarify without some preliminary guidance from the New York courts. For whatever reasons, we have not received any such guidance in this case; the only question that has been explicitly decided by the New York courts is that the variance granted was authorized by section 72-21 of the New York City Zoning Resolution. It is for the state courts to decide in the first instance whether the apparently conflicting provisions of the Multiple Dwelling Law and Administrative Code operate to make the granting of the variance a denial of due process.
II
Plaintiff’s first cause of action concerns the grant to Kimball of the original permit for the alteration he sought to make. Judge Moore holds that this does not state a claim for relief because New York law creates no property right in the existing classification of real estate. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). I do not believe that there is any assertion in this case of a vested right to retain a given zoning classification. Rather, what plaintiffs are asserting, it seems to me, is that the value of their own homes— in which they undoubtedly possess property interests — was reduced by actions unconstitutionally taken and connived in by the various defendants. Accordingly, I do not see that our task is in any way furthered by an analysis of the source of rights which may be vindicated in § 1983 suits.
If the complaint herein alleged that the actions of Kimball and the other defendants on the first cause of action were actually aimed at plaintiffs, a claim under the Civil Rights Act would be stated. Instead, however,
[t]he allegations contained in the complaint indicate no more than the action of several interested parties to a proceeding, who sought vigorously to protect their own interests, coupled with the normal administrative processes of adjudication and appeal.
Powell v. Workmen’s Compensation Board, 327 F.2d 131, 137 (2d Cir. 1964). Such allegations have consistently been held not to *433satisfy the requirements of an action under § 1983.
It is for this reason (also alluded to in Judge Moore’s opinion) that I would affirm the dismissal of plaintiffs’ first cause of action. I agree with Judge Moore that nothing said in either opinion should be taken in any way to foreclose plaintiffs from pursuing any remedies that they may retain under state law.
FEINBERG, Circuit Judge(concurring):
I concur in the result. I agree that the second and third causes of action are barred on res judicata/collateral estoppel grounds. I join in so much of Part VI of Judge Moore’s opinion as dismisses on res judicata grounds the fourth cause of action’s challenge to BSA procedures. As to that portion of the fourth cause of action which alleges an impermissible delegation of legislative authority by the City of New York, I would dispose of it by holding that appellants lack standing to raise the point, since they are estopped — on res judicata grounds — from challenging the procedures adopted pursuant to the delegation and, therefore, can point to no cognizable injury to them arising out of the delegation. I agree with Judge Lumbard’s rationale for disposing of the first cause of action (set out in Part II of his concurring opinion).
. I concur in Judge Moore’s analysis of plaintiffs’ third cause of action; I agree that the New York courts had inherent power to con*432sider the effect of Justice Latham’s participation on their jurisdiction, and I conclude that the determination that their jurisdiction was not ousted turned on a factual analysis of his alleged interest in the case, which we ought not to review here.
. One of the arguments adduced by Judge Moore in favor of the applicability of res judi-cata is the doctrine of Kovarsky v. Housing and Development Administration, 31 N.Y.2d 184, 335 N.Y.S.2d 383, 286 N.E.2d 882 (1972). I deem it unnecessary to become involved in the complicated questions of who are the indispensable parties to a declaratory judgment action because I think the whole Kovarsky issue is irrelevant.
The issue turns on plaintiffs’ contention that the New York courts had no power to hear their constitutional claims in an Article 78 proceeding. While there is such a doctrine, it does not refer to constitutional claims of the kind made by plaintiffs’ second cause of action. Rather, it bars a court from considering the constitutionality of the legislative enactment under which the challenged agency action was taken. A challenge to the constitutionality of the procedure employed by the agency, especially one that assumes the validity of the relevant state statutes, can always be heard. See N.Y.C.P.L.R. § 7803(3); Anderson v. Board of Educ., 77 Misc.2d 904, 354 N.Y.S.2d 521, 526-27 (Sup.Ct. Westchester County 1974). Specifically in the zoning context, this means that the constitutionality of a zoning ordinance may not be challenged in an Article 78 proceeding, but the construction or application of the relevant statutes in an unconstitutional manner may. Comparato v. Knauf, 61 Misc.2d 245, 305 N.Y. S.2d 640, 644 (Sup.Ct. Monroe County 1969).
Therefore, if the objection that the New York courts had never in fact had an opportunity to consider plaintiffs’ constitutional claims were the only bar to the application of res judicata, I would join fully in Part V of Judge Moore’s opinion — as 1 do in Part VI, where the Kovar-sky rationale is properly applied to plaintiffs’ fourth cause of action, which does attack the constitutionality of the underlying statute.