# Lubelle v. Rochester Preservation Board

> Appellate Division of the Supreme Court of the State of New York · February 2, 1990 · 158 A.D.2d 975

URL: https://www.frixlaw.com/law-library/cases/5922348

## Case

- **Full name:** Jack G. Lubelle v. Rochester Preservation Board
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** February 2, 1990
- **Citations:** 158 A.D.2d 975; 551 N.Y.S.2d 127; 1990 N.Y. App. Div. LEXIS 1517
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5922348

## Opinion text

Plaintiff failed to establish that the city’s landmark restrictions either deprived him of "economically viable use of his property” or failed to "substantially advance legitimate State *976 interests” (Seawall Assocs. v City of New York, 74 NY2d 92, 107 , cert denied sub nom. Wilkerson v Seawall Assocs., — US — , 110 S Ct 500 ). Plaintiff did not present “dollars and cents” proof that the property would not be capable of producing a reasonable return under the landmark regulations (see, de St. Aubin v Flacke, 68 NY2d 66, 77 ; Spears v Berle, 48 NY2d 254, 263 ), but relied instead on evidence that the parcel would have been more profitable as a public parking lot, which is not a permitted use under the city’s zoning ordinance (Code of City of Rochester § 115-78). Even assuming that plaintiff had obtained a variance for his proposed use, he is not constitutionally entitled to the most beneficial use of his property (see, Andrus v Allard, 444 US 51, 66 ; Matter of Society for Ethical Culture v Spatt, 51 NY2d 449, 456 , rearg dismissed 52 NY2d 1073 ).
There is no question that the city’s landmark regulations, which restricted plaintiff’s right to demolish the Hoyt-Potter House, substantially advance the city’s legitimate interest in preserving historically and architecturally significant buildings (see, Penn Cent. Transp. Co. v New York City, 438 US 104, 134 , reh denied 439 US 883 ). Nothing in the record suggests that the designation of the Hoyt-Potter House as a landmark was unreasonable, and the defendants’ decision to protect it should therefore be upheld (Matter of Society for Ethical Culture v Spatt, supra, at 454).
In light of the city’s subsequent condemnation of the property, plaintiff’s challenge to that portion of the order denying his request for permission to demolish the building is moot (see, Lubelle v City of Rochester, 145 AD2d 954 , Iv denied 74 NY2d 601 ). (Appeal from order and judgment of Supreme Court, Monroe County, Cornelius, J. — declaratory judgment.) Present — Denman, J. P., Boomer, Green, Lawton and Davis, JJ.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5922348. Public record. Not legal advice.