Petition for Writ of Certiorari — Shubert Organization, Inc. v. Landmarks Preservation Commission
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Supreme Couft, -U.S
Q kor93 3 82 FILED
--
IN THE FEB 26 892
Supreme Court of the United PGi The |
OCTOBER TERM, 1991 <page
_>
THE SHUBERT ORGANIZATION, INC., ef ai.,
Petitioners,
—V —
LANDMARKS PRESERVATION COMMISSION OF THE
CITY OF NEW YORK, et ai.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT, APPELLATE DIVISION
FIRST JUDICIAL DEPARTMENT OF THE STATE OF NEW YORK
PETITION FOR WRIT OF CERTIORARI
ALVIN M. STEIN*
PARKER CHAPIN FLATTAU & KLIMPI
Attorneys for Petitioner The Shubert
Organization, Inc. Jujamcyn Theatres
Corporation, The League of American
Theatres and Producers, Inc., and
239-247 West 45th Street Corp.
1211 Avenue of the Americas
New York, New York 10036
(212) 704-6000
Of Counsel:
AMOS ALTER
SHARON H. STERN
* Counsel Of Record
PROSKAUER ROSE GOETZ & MENDELSOHN
Attorneys for Petitioners Nederlander
Organization Inc., Nederlander Amuse-
ment Corp. of Maryland, Nederlander
Theatrical Corp., All State Amusement
Co. of Illinois, Inc., Hellinger/Neder-
lander 46th Street Corp., Lunt Theatre
Co. (A New York General Partnership),
Rose Nederlander Associates, Inc., and
Alvin Nederlander Associates, Inc.
1585 Broadway
Of Counsel:
GREGG M. MASHBERG
New York, New York 10036
(212) 969-3000
QUESTIONS PRESENTED FOR REVIEW
1. Does this Court’s Penn Central decision (438 U.S. 104
[1978]) preclude an as-applied Takings Clause challenge to a
landmark designation?
2. In determining whether the interior and exterior land-
marking of certain theatres constitutes a compensable taking,
should a court apply solely a bright-line test as to whether all
value has been destroyed, or must there be a review of all rel-
evant factors, including, where necessary, fact-finding (or
remand for fact-finding) on disputed issues of material fact?
3. Are the police-power and equal protection limitations
upon governmental real property regulation, which inhere in
the requirement of a comprehensive plan, satisfied in land-
marking in general, or in New York City’s landmarking ordi-
nance in particular?
4. Does a Special Demolition Permit requirement, applica-
ble only to a handful of specified properties, effectively pro-
hibiting any change in their use while neighboring properties
remain unrestricted, constitute unconstitutional reverse spot-
zoning?
ii
LIST OF PARTIES
The parties to the proceeding below appear in the first
footnote.* Petitioners are all the original plaintiffs. Respon-
dents other than Save The Theatres, Inc., are all the original
defendants. Respondent Save The Theatres, Inc., was origi-
nally not a party, but was granted leave by the trial court,
first to appear as amicus, and then to intervene.
None of the corporate parties has publicly traded stock.
The information required by this Court’s Rule 29.1 is set
forth in the second footnote.**
Petitioners are The Shubert Organization, Inc., Nederlander Organi-
zation, Inc., Jujamcyn Theaters Corporation, The League of Ameri-
can Theaters and Producers, Inc., Nederlander Amusement Corp. of
Maryland, Nederlander Theatrical Corp., All State Amusement Co. of
Illinois, Inc., Hellinger/Nederlander 46th Street Corp., Lunt Theatre
Co. (a New York general partnership), Rose Nederlander Associates,
Inc., Alvin Nederlander Associates, Inc., and 239-247 West 45th Street
Corp.
Respondents are Landmarks Preservation Commission of the City
of New York, City Planning Commission of the City of New York,
Board of Estimate of the City of New York, The City of New York,
and Save The Theatres, Inc.
Petitioner The Shubert Organization, Inc., is a wholly-owned sub-
sidiary of The Shubert Foundation, Inc., a not-for-profit corporation
fostering the theatre arts. Petitioner The Shubert Organization, Inc.,
owns a one-half interest in petitioner 239-247 West 45th Street, Inc.,
together with a one-half interest owned by the Estate o! Irving Berlin.
Petitioners Nederlander Amusement Corp. of Maryland, Nederlander
Theatrical Corp., All State Amusement Co. of Illinois, Inc.,
Hellinger/Nederlander 46th Street Corp., Rose Nederiander Associ-
ates, Inc. and Alvin Nederlander Associates, Inc., are all wholly-
owned subsidiaries of petitioner Nederlander Organization, Inc.
TABLE OF CONTENTS
PAGE
Questions Presented For Review.................05. i
Er ee re ee li
sa eek n acu cusncae ee enausade ses iv
ee ee ee cad ed babs eke ewe kA wh eb wae l
SE EE OUNEMOORIONE conc cece cacantscssctscsces 2
Constitutional Provisions And Statutes Involved...... 2
De cick ews Seen eenseunvana 3
Reasons For Granting The Writ ................... 7
This Case Raises The Question Of The Proper
Application Of Penn Central And Its Progeny
To As-applied Takings Clause Challenges .... 7
This Case Invites This Court, If The Court
Deems It Appropriate, To Review Landmarks
Law’s Place Within Takings Clause Jurispru-
sleeve rice h heehee haa GAS ea 10
The Special Demolition Permit Requirement
Constitutes Unconstitutional Reverse Spot-
iV
TABLE OF AUTHORITIES
Cases:
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967))
Agins v. Tiburon, 447 U.S. 255 CIFGO) «ww. se aceccas
PAGE
Sn
Sn
Armstrong v. United States, 364 U.S. 40 (1960) ....11, lln
Asian Americans for Equality v. Koch, 72 N.Y.2d 121,
527 N.E.2d 265, 531 N.Y.S.2d 782 (1988) ....13, 13n, 14
Baltimore & Ohio R. Co. v. Aberdeen & Rockfish R.
oe Oe | eee pee ree
Bell v. City of Elkhorn, 122 Wis.2d 558, 364 N.W.2d
| SP Pre ree ere re rrr eee
Bowen v. Gilliard, 483 U.S. 587 (1987)..............
Brendale v. Confederated Tribes, 492 U.S. 408 at 458
i. Aree error errr eer Tre rer errs
Cassel v. City of Baltimore, 195 Md. 348, 73 A.2d 486
SPER kick cele ccece eer kaedewa eiacurekeneeets hese
Citizens to Preserve Overton Park v. Volpe, 401 U.S.
ee CEN it aer ces eere ieee bckeedr ieee
City of Cleburne v. Cleburne Living Center, 473 U.S.
BE SI. 65 45605404006 0okas be bands ses eee eas
City of Pharr v. Tippitt, 616 S.W.2d 173 (Tex. 1981)
Clark v. City of Boulder, 146 Colo. 526, 362 P.2d 160
tt ere re rrr eee res ere ry Ter errr eT eT ty eee
Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ...11
Florida Power & Light Co. v. Lorion, 470 U.S. 729
FE io 8s hae CKD EEA TERS ROeCESEE NSS CEU EOeuees
13
15
14
10
PAGE
Fred F. French Investing Co. v. City of New York, 39
N.Y.2d 587 (1976), 385 N.Y.S.2d 5, 350 N.E.2d 381,
app. dism. and cert den., 429 U.S. 990 (1976)..... 15
Freeman v. City of Yonkers, 205 Misc. 947, 129
N.Y.S.2d 703 (Sup. Ct. Westchester Co. 1954)..... 13
Higginbotham v. City of The Village, 361 P.2d 191
(Oia, PGGD ook vac cece cuwedaasinehactasees cones 13
Hodel v. Irving, 481 U.S. 704 (1987). .........5-005- 8, ll
Jackson v. Wilson, 195 So.2d 470 (Miss. 1966) ...... 15
Kaiser Aetna v. United States, 444 U.S. 164 (1979).8, 9, 10
Keystone Bituminous Coal Ass’n. v. DeBenedictis, 480
U.S. BIO CIDR) concn cudcacsvsbeetevaccseeeuces 8, 11
Kozesnik v. Township of Montgomery, 24 N.J. 154,
ci © 2 al.) ewer rey rere eres 13, 14
Little v. Board of County Commrs., 631 P.2d 1282
(het. WB. os occ ine n cuss tenpekineevrcesesuners 13
Loretto v. Teleprompter Manhattan CATV Corp., 458
E13. GID CIGD sdk cciccetus wiccsecstsdessueevenes 1]
Lucas v. South Carolina Coastal Council, No. 91-453,
i A , ... POPPRTTTET TET Eee eit lin
MacDonald Sommer & Frates v. Yolo County, 477
U.S. 340 CIGOG) oc onic ven cance seenvncsieduesnannen 8, 8n
Moore v. City of East Cleveland, 431 U.S. 494 (1977) 14
Munger v. Town of Exeter, 128 N.H. 196, 512 A.2d
iy i, \ oa rrrrrrrreerrrcr rc Terre rt yer 15
Nectow v. Cambridge, 277 U.S. 183 (1928)....... ae 14
Nollan v. California Coastal Comm’n., 483 U.S. 825
C10GF) x ode knw ud cdnnsecdtanauawanetsceeneeveress Sn
vl
PAGE
Odabesh v. Mayor and Council of the Borough of
Dumont, 65 N.J. 115, 319 A.2d 712 (1974)........ 15
Palazzi v. State, 113 R.1. 218, 319 A.2d 658 (1974) .. 13
Penn Central Transp. Co. v. City of New York, 42
N.Y.2d 324, 336 N.E.2d 1271, 397 N.Y.S.2d 914
(1977), GG. S56 UTR CRGTS) onc accvesscacas 11, 13n
Penn Central Transp. Co. v. City of New York, 438
U.S. SR Cree i ia pena Sn, 6n, 7, 7n, 8, 8n, 9, 10,
10n, 11, 12, 13, 13n, 14, 15, 17
Pennell v. City of San Jose, 485 U.S. 1 (1988) ...... 8, 9n
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) 1]
Pension Benefit Guaranty Corp. v. LTV Corp., ____
U.S. » SEO Bikes Se Co acs aduewescxs les 9
Salvetti v. Zoning Board of Adjustment, 429 Pa. 330,
SAO DAG FOR Ce nk ek ck ae eee 15
Shelton v. City of Bellevue, 73 Wash.2d 28, 435 P.2d
Dae CUPONE < n0kn 6 edie bcaéeaeheeee heen te 14
Society for Ethical Culture v. Spatt, 51 N.Y.2d 449,
415 N.E.2d 922, 434 N.Y.S.2d 932 (1980) ......... 13n
Tollius v. City of Miami, 96 So.2d 122 (Fla. 1957)... 15
Vernon Park Realty v. City of Mount Vernon, 307
N.Y. 493, ESE MIG Sit Cities nc nst cn ecnanees 15
Williamson County Regional Planning Comm’n. v.
Hamilton Bank, 473 U.S. 172 (1985).............. 8n
Vil
PAGE
Statutes:
, Sie come BPs, | arene Pere ee ees 2
Landmarks Law of the City of New York (N.Y.C.
Admin. Code, Title 25, C.3)........... a Re ee
New York City Zoning Resolution § 84-742 [1982] .3, 15, 16
IN THE
Supreme Court of the United States
OCTOBER TERM, 199]
No. 91-_
>_>
THE SHUBERT ORGANIZATION, INC., ef al.,
Petitioners,
—_V.—_
LANDMARKS PRESERVATION COMMISSION OF THE
CITY OF NEW YORK, ef al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT, APPELLATE DIVISION,
FIRST JUDICIAL DEPARTMENT OF THE STATE OF NEW YORK
eS
PETITION FOR WRIT OF CERTIORARI
Petitioners respectfully pray that a writ of certiorari issue
to review the May 16, 1991, decision and order of the New
York Supreme Court, Appellate Division, First Judicial
Department, which affirmed the judgment of the nisi prius
court dismissing petitioners’ complaint.
OPINIONS BELOW
The opinion and order (one paper) of the New York
Appellate Division, dated May 16, 1991, is reported at 166
A.D.2d 115 and at 570 N.Y.S.2d 504, and is reproduced in
the appendix hereto at App. la.
2
The opinion of the court of original instance, dated
December 5, 1989 (New York Supreme Court, New York
County, Hon. Irma Vidal Santaella, J.), is not reported. It is
reproduced in the appendix hereto at App. 9a.
The refusals of the New York Court of Appeals to enter-
tain an appeal from the order of the Appellate Division,
dated September 19, 1991 (dismissing appeal purportedly
taken as of right) and December 18, 1991 (denying discretion-
ary leave to appeal) are respectively reported at 78 N.Y.2d
1006, S580 N.E.2d 1059, 575 N.Y.S.2d 456 and at ___
N.Y.2d ; N.E.2d ; Je > Fn
They are both reproduced at App. 43a.
STATEMENT OF JURISDICTION
Petitioners seek review from the opinion and order of the
New York Supreme Court, Appellate Division, First Judicial
Department, dated May 16, 1991, which affirmed dismissal
of their complaint. The New York Court of Appeals, on Sep-
tember 19, 1991, dismissed an appeal purportedly taken as of
right from the said order of the Appellate Division, and on
December 18, 1991, denied discretionary review.
This Court has jurisdiction to review by writ of certiorari a
final judgment or decree rendered by the highest court of a
State in which a decision could be had, where a title, right,
privilege or immunity is specially set up or claimed under the
Constitution of the United States (28 U.S.C. § 1257[a]).
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The Fifth Amendment to the United States Constitution
provides in relevant part that ‘‘private property [shall not] be
taken for public use without just compensation.’’ The Four-
teenth Amendment to the United States Constitution provides
in pertinent part that ‘‘No State shall deprive any person of
. . property without due process of law, or deny any per-
son within its jurisdiction the equal protection of the laws.”’
The Landmarks Law of the City of New York (N.Y.C.
Admin. Code, Title 25, C.3), is set forth in relevant part at
App. 44a.' Relevant parts of New York City’s Zoning Reso-
lution are reproduced at App. 81a.
STATEMENT OF THE CASE
In May 1982, the New York City Board of Estimate
promulgated regulations affecting solely forty-four named
theatres in the Broadway theatre district (the ‘*Listed The-
atres’’), prohibiting their demolition unless a Special Demoli-
tion Permit issued upon a showing either that the theatre was
unsafe, or that demolition would not hurt the entertainment
sector of the City’s economy (Zoning Resolution 81-742
[1982], App. 8la, infra). At the same time, the Board of
Estimate also mandated that the City Planning Commission
develop a comprehensive plan to strengthen the theatre indus-
try, including ‘‘actions’’ of the Landmarks Preservation
Commission (Zoning Resolution 81-74 [1982]). Simultane-
ously, the Landmarks Preservation Commission announced a
public hearing on the proposed landmarking of the Broadway
theatres. After three days of hearings in 1982, the Commis-
sion in November 1987-January 1988 issued forty-seven land-
mark designations affecting twenty-eight theatres (nineteen as
to both exterior and interior, two as to exterior only, and
seven as to interior only).2 Of these twenty-eight theatres,
1 Among the declared purposes of the Landmarks Law are to “‘protect
and enhance the city’s attractions to tourists and visitors and the sup-
port and stimulus to business and industry thereby provided”’ (§ 25-
301[b], infra at App. 45a).
nN
No transcript had been made of the 1982 hearings, and none would
be made until after this action was commenced in May 1989, although
seven of the eleven commissioners had changed before the landmark
designations here in issue were made.
4
twenty-two (involving thirty-nine designations) are owned and
operated by petitioners, and are the subject of this action.’
The Board of Estimate approved em masse these forty-
seven designations without change on March 10, 1988. The
three theatre-owner organizations (Shubert, Nederlander,
Juyamcyn) were first given five minutes each (i.e., an average
of nineteen seconds per designation) to be heard.
Petitioners timely sought judicial review of the designa-
tions, as provided under New York procedure, in the trial-
court (New York Supreme Court, New York County) on
constitutional and other grounds, and sought damages. Since
the Landmarks Preservation Commission had expressly
refused to consider economic evidence,* petitioners presented
to the trial court evidence that, in particular, interior land-
marking (twenty-one of the twenty-two theatres landmarked
had their interiors designated) interfered with and cost bur-
dened continued use of these buildings as theatres.° The trial
3 Two of the Listed Theatres had been landmarked before 1982. Two
more were landmarked in 1982, three in 1985, and one in 1987 before
the ones here in issue. The balance of the Listed Theatres were either
not considered for designation, or not designated.
4 See remarks of Landmarks Commission Chairman Norman at Com-
mission Meeting of December 9, 1986 (App. 84a):
**TA]s you know, the Commission does not look to cost in terms of
how these things are replaced or changes made on a building.
. . . . So the argument that cost should be considered by the com-
mission, I have rejected.”’
5 An interior landmark designation interferes with the owner’s ability
to adapt the theatre to changing productions. The full adverse impact
of these interior designations has been averted (so far) by the willing-
ness of the Landmarks Commission, although unauthorized by law to
do so, to overlook production-related changes, provided, however,
that the owner pledges to restore it to its ‘‘original’’ (i.e., moment of
designation) condition at the end of the show’s run, regardless of (i)
cost, (ii) the necessity of the inevitable new production-related changes
when the next show moves in, and (iii) the fact that the public will have
no ‘‘benefit’’ from the ‘‘restored’’ interior in the interim while the the-
atre is dark. While this informal relaxation of the rules is still confis-
5
court declined to hold an evidentiary hearing® or otherwise
make findings on this point, because, it erroneously held, the
agency below (where the evidence was not presented and
which had expressly refused to consider economic evidence)
had already ruled on the question (see trial court opinion at
App. 27a, infra).’
The trial court also dismissed, without an evidentiary hear-
ing, petitioners’ damage claims, and did not even discuss,
much less rule upon, the petitioners’ claim that the transfer-
able air rights—accorded petitioners by virtue of the land-
mark designations—were without value, because of a lack of
buildable sites within the receiving zone which could utilize
such rights.
On appeal, the Appellate Division of the Supreme Court
affirmed (App. la). The Takings Clause challenge was dis-
posed of summarily (App. Ta):
“Since the [United States] Supreme Court in Penn
Central, supra [438 U.S.] at 138, clearly ruled that the
application of the Landmarks Law does not affect a tak-
catory in the long run, the toleration by the Commission of
production-related changes is legally irrelevant. An attack upon the
validity of formally promulgated rules may not be avoided merely
because the agency announces it will not enforce the rules to their full
extent (Abbott Laboratories v. Gardner, 387 U.S. 136 [1967]).
6 Indeed, it even held, erroneously, that it was not empowered to hold
an evidentiary hearing on any of the issues.
7 The trial court’s refusal even to consider this question, of course,
precluded evaluation by it of whether there was the substantial
advancement of legitimate state interests as required by this Court’s
decisions (see Nollan v. California Coastal Comm’n., 483 U.S. 825,
834 [1987]; Agins v. Tiburon, 447 U.S. 255, 260 [1980]; Penn Central
Transportation Co. Vv. City of New York, 438 U.S. 104, 127 [1978}).
Neither preservation of theatre buildings (the Landmark Commission’s
professed goal) nor preservation of the theatre industry (what petition-
ers contended, and amply demonstrated below, was the Commission’s
true goal, an admittedly illegal one for the Commission under New
York law) is substantially advanced by designations which may prevent
the continued use of the theatre buildings as theatres.
6
ing of the property, the constitutional challenge thereby
is resolved. Furthermore, under the standards set forth
in [certain New York cases], the petitioners have not
carried their burden of demonstrating that the Land-
marks Law as applied to these particular theatres denies
them essential use of their property.’’
The Appellate Division (contrary to the trial court) also
held that, in the absence of final agency action on applica-
tions by petitioners for renovations or alterations, the claim
of impairment of economic use was not ripe for review.* As
to air rights, the Appellate Division merely observed that
such rights inured to petitioners by virtue of the designations,
and that, ‘‘absent a successful challenge, [the rights] must be
presumed to have economic benefit’’ (App. 7a). It made no
mention of petitioners’ contention, never passed upon at any
level, that such rights had no value whatsoever because of the
lack of receiving sites which could use them. The Appellate
Division (and the court below) also failed to address petition-
ers’ claim of discrimination, in that other similarly situated
theatres were not landmarked.
The New York Court of Appeals dismissed an appeal pur-
portedly taken as of right (App. 43a), and denied leave for a
discretionary appeal (App. 43a).
8 This conclusion ignored the fact that Penn Central (at 132) had
questioned the right of appellants there to challenge the consequences
of designation, as they had not challenged the act of designation when
it was made.
-
REASONS FOR GRANTING THE WRIT
THIS CASE RAISES THE QUESTION OF THE PROPER
APPLICATION OF PENN CENTRAL AND ITS
PROGENY TO AS-APPLIED TAKINGS
CLAUSE CHALLENGES
Perhaps influenced by the fact that the landmarks law in
issue here (New York City’s) is the same one as was involved
in Penn Central Transportation Co. v. City of New York,
438 U.S. 104 (1978), and that the Takings Clause challenge
there was rejected, the New York Appellate Division, in the
case at bar, in a one-sentence discussion, ruled that ‘‘the con-
stitutional challenge thereby is resolved’’ (App. at 7a). Of
course, Penn Central never purported to settle for all time
the constitutionality of every designation under New York
City’s local law; indeed, it expressly did not even purport to
settle for all time the constitutionality of the very designation
there in issue, that of New York’s Grand Central Terminal.
As the Court there noted, “‘We emphasize that our holding
today is on the present record, which in turn is based on
Penn Central’s present ability to use the Terminal for its
intended purposes and in a gainful fashion’’ (Footnote 36 at
p. 138).
While the Penn Central Court considered, and rejected, a
challenge to New York City’s landmarks law on its face, it
expressly noted that “his was ‘‘not. .. the end of our
inquiry’? (at 135), and acknowledged its duty to consider
‘““the question of the severity of the impact of the law on
appellant’s parcel, and its resolution in turn requires a careful
assessment of the impact of the regulation on the Terminal
site’ (at 136). Plainly, the Penn Central Court did not rule
that landmarking could be challenged only upon a showing
that a designation totally destroyed the value or use of the
property.”
9 In its earlier discussion of the questions presented, the Penn Central
Court had identified two, namely (1) whether there had been a taking,
ee
In identifying the factors it considered relevant to its par-
ticular inquiry, the Penn Central Court certainly did not
intend to create a bright-line test as to when a regulatory
‘‘taking’’ has occurred. Indeed, Penn Central itself noted the
inability to develop any set formula for such cases (at 124).
This is completely in keeping with the takings jurisprudence
of this Court, as developed both before and subsequent to
Penn Central. See Pennell v. City of San Jose, 485 U.S. 1
(1988); Bowen v. Gilliard, 483 U.S. 587 (1987); Hodel v. Ir-
ing, 481 U.S. 704 (1987); Keystone Bituminous Coal Ass’n.
v. DeBenedictis, 480 U.S. 470 (1987); MacDonald Sommer &
Frates v. Yolo County, 477 U.S. 340 (1986); Kaiser Aetna v.
United States, 444 U.S. 164 (1979).
As this Court (per O’Connor, J.) noted relatively recently
(Hodel v. Irving, 481 U.S. 704, 713-4 [1987]):
‘*The framework for examining the question whether
a regulation of property amounts to a taking requiring p
just compensation is firmly established and has been reg-
ularly and recently reaffirmed. [Citations omitted]. As
THE CHIEF JUSTICE has written:
‘{[T]his Court has generally ‘‘been unable to
develop any ‘set formula’ for determining when
‘justice and fairness’ require that economic injuries
caused by public action be compensated by the gov-
and ‘‘(2) if so, whether the transferable development rights afforded
appellants constitute ‘just compensation’ within the meaning of the
Fifth Amendment,’’ and added that it needed to discuss only the first
question. Nonetheless, the Court did (at 137) address the air rights,
which had been stipulated to be valuable. Subsequent decisions of this
Court, applying the two-component test of a regulatory taking claim
enunciated in MacDonald, Sommer & Frates v. Yolo County, 477 U.S.
340, 348 (1986) (an owner must establish that [i] the regulation has
‘‘taken’’ his property, and [ii] any proffered compensation is not
‘Sust’’), have treated Penn Central as containing an alternative hold-
ing that the value of the air rights prevented a showing of lack of just
compensation. See the treatment of Penn Central in MacDonald, supra
at 350, and in Williamson County Regional Planning Comm’n. v.
Hamilton Bank, 473 U.S. 172, 187 (1985).
9
ernment, rather than remain disproportionately
concentrated on a few persons.’’ [Penn Central
Transportation Co. v. New York City, 438 U.S.]} at
124. Rather, it has examined the ‘‘taking’’ question
by engaging in essentially ad hoc, factual inquiries
that have identified several factors—such as the
economic impact of the regulation, its interference
with reasonable investment backed expectations,
and the character of the governmental action—that
have particular significance. Jbid.’ Kaiser Aetna v.
United States, supra, [444 U.S. 164] at 175
[1979].’""°
Insofar as a particular factor is a subject of factual dispute
not yet resolved, the facts would have to be found, even if no
formal fact-finding below was required (Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402 [1971]), for effective
judicial review of administrative actions requires reasoned
findings (Baltimore & Ohio R. Co. v. Aberdeen & Rockfish
R. Co., 393 U.S. 87 [1968]). Depending on the circumstances
and the jurisdiction of the courts and agencies involved,
“there may be independent judicial factfinding when issues
that were not before the agency are raised’’ (Overton, supra
at 415), or, if the reviewing court itself cannot make findings,
it may remand to a trial court (as was done in Overton) or to
the administrative agency (Pension Benefit Guaranty Corp. v.
10 Yet another factor which must be here weighed is whether the ppliti-
cal unaccountability of the landmark designations, because they are
without cost to the public, has here caused a toleration of unworthy
designations, thus vitiating the police-power basis of allowing such
restrictions to begin with. ‘‘The politically attractive feature of regula-
tion is not that it permits [results] to be achieved that could not be
achieved otherwise; but rather that it permits them to be achieved ‘off
budget,’ with relative invisibility and thus relative immunity from nor-
mal democratic processes’’ (Scalia, J., concurring in part and dissent-
ing in part in Pennell v. City of San Jose, 485 U.S. 1 at 22 [1988)}).
There can be no question that New York City’s Landmarks Commis-
sion would not have here proceeded with such a heavy hand if it had
had to cost-justify forty-seven designations. Indeed, an architect mem-
ber of the Commission admitted that many of the theatres here desig-
nated were architecturally ‘‘no great shakes’’ (App. 85a).
10
LTV Corp., U.S. , 110 S.Ct. 2668 [1990]; Florida
Power & Light Co. v. Lorion, 470 U.S. 729 [1985]), as
appropriate.
The New York courts have thus clearly misread Penn Cen-
tral and other controlling authorities of this Court, when they
refuse to engage in the ‘‘ad hoc, factual inquiries’’ (Kaiser
Aetna, supra at 175) mandated by this Court, and instead
apply a simplistic bright-line test, to determine whether a
compensable taking has incurred. This Court ought therefore
grant a writ of certiorari to make manifest the method of
application of Takings Clause case principles in the land-
marking context.
THIS CASE INVITES THIS COURT, IF THE COURT
DEEMS IT APPROPRIATE, TO REVIEW LANDMARKS
LAW’S PLACE WITHIN TAKINGS CLAUSE
JURISPRUDENCE
While, as noted above, petitioners contend that no aspect
of Penn Central need be called into question either for this
case to merit review by certiorari, or for petitioners to prevail
upon such review, nonetheless this case does afford this
Court the opportunity, if the Court deems it appropriate, to
reconsider the constitutional and logical pinnings of land-
mark designations ff general, or of Penn Central in particu-
lar.
The affirmative power of governments to designate proper-
ties as landmarks, and thereby restrict or limit the rights of
ownership, is not here disputed.'’ ‘‘It is a separate question,
however, whether an otherwise valid regulation so frustrates
11 Petitioners do dispute (unlike the appellants in Penn Central)
whether the designations here are appropriate to the public purposes
supposed to be served; whether the properties are capable of earning a
reasonable return; whether they can continue to be used for their his-
toric purpose; whether the transferable air rights conferred are valu-
able; and the ‘‘specific factual premises’’ below (or, more precisely,
the failure to find facts). Compare Penn Central at 129, where it is
stated that none of these points was there in dispute.
1]
property rights that compensation must be paid’’ (Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 425
[1982]). As Justice (now Chief Justice) Rehnquist noted in his
dissenting opinion in Penn Central (n. 14 at 152), ‘‘[M]Jany
States and cities in the Nation have chosen to preserve land-
marks by purchasing or condemning restrictive easements
over the facades of the landmarks and are apparently quite
Satisfied with the results.”
“The general rule at least is 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 U.S. 393, 415 [1922]). The Fifth Amendment’s
Just Compensation Clause was ‘‘designed 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’’ (Armstrong v. United States, 364 U.S. 40,
49 [1960]).'? The principle is generally satisfied when there is
‘“‘an average reciprocity of advantage’’ (Pennsylvania Coal,
supra at 415), when ‘“‘[a]ll property owners in a designated
area are placed under the same restrictions, not only for the
benefit of the municipality but also for the common benefit
of one another’ (Rehnquist, J., dissenting in Penn Central,
at 140; see also Hodel v. Irving, 481 U.S. 704 [1987]; Key-
stone Bituminous Coal Ass’n. v. DeBenedictis, 480 U.S. 470
[1987]). This ‘‘average reciprocity of advantage’’ is usually
accomplished by a comprehensive plan, as in a community-
wide zoning ordinance (Euclid v. Ambler Realty Co., 272
U.S. 365 [1926]). This, however, is absent in landmarking in
general, and in New York City’s landmarking ordinance in
particular. As the New York Court of Appeals observed in
considering this ordinance in Penn Central, 42 N.Y.2d 324,
12 ~_—In terms of the case at bar, the Armstrong question is whether it is
petitioners or the public as a whole who should, in all fairness and jus-
tice, bear the cost of regulations which (i) are designed in part at least
to foster public interests by attracting tourists and visitors and thereby
stimulate the City’s business and industry (see Footnote 1, supra), and
(ii) by no stretch of the imagination regulate anything which could be
called a nuisance (cf Lucas v. South Carolina Coastal Council, No.
91-453, cert. granted).
12
329-330, 366 N.E.2d 1271, 397 N.Y.S.2d 914 (1977), aff’d.,
438 U.S. 104 (1978):
‘Restrictions on alteration of individual landmarks
are not designed to further a general community plan.
Landmark restrictions are designed to prevent alteration
or demolition of a single piece of property. To this
extent, such restrictions resemble ‘discriminatory’ zoning
restrictions, properly condemned’’.
The New York Court of Appeals’ analysis discloses the
fatal flaw in New York’s scheme of landmarking—the
absence of the requisite ‘‘average reciprocity of advantage.”’
Upon appeal, however, the majority in this Court distin-
guished the New York City Landmarks Law from discrimina-
tory zoning by concluding that ‘‘the New York City law
embodies a comprehensive plan to preserve structures of his-
toric or aesthetic interest wherever they might be found in the
city’? (at 132), and adding in a footnote that ‘‘[W]Je do not
understand the New York Court of Appeals to disagree with
our characterization of the law’’ (id., n. 28)."
It is respectfully submitted that the Penn Central majori-
ty’s distinction of landmarking from discriminatory zoning is
untenable and should be abandoned. First: The New York
Court of Appeals has shown, subsequent to Penn Central,
that it indeed meant what it said in its Penn Central decision,
namely that in landmarking there is no comprehensive plan
or average reciprocity of advantage,'’* which the New York
13 In dissent, Justice (now Chief Justice) Rehnquist also recognized the
requirement for the ‘‘average reciprocity of advantage’’ (at 139-40),
but, unlike the majority, he did not find there to be a comprehensive
plan (id.).
14. **To be sure individual landmark designation involves greater prob-
lems than general zoning or historical district regulation, because
unlike those types of restrictions the individual landmark designations
do not involve corresponding restrictions of the surrounding parcels
which operates [sic] to the benefit of the landmark owner (Penn Cen-
‘
- sceiteeseaataamal aaa aaa aaa
13
court continues to believe is unnecessary. The strained read-
ing this Court’s Penn Central majority put on what the New
York court had written, in order to save its result, was simply
wrong.
Second: In any event, the ‘‘comprehensive plan’’ which
this Court’s Penn Central majority (at 132) read into the New
York ordinance (which was in fact never there) would not
have withstood analysis had it indeed been in the ordinance.
To analogize to zoning, a ‘‘plan’’ to zone a parcel here, a
parcel there, and other parcels, if any, when one gets around
to them, is nothing but piecemeal zoning.'* Universally
understood, along with ‘‘spot zoning’’ (see infra), to be the
antithesis, not an example, of a comprehensive plan, piece-
meal zoning is universally condemned. Specifically, it is as
prohibited in New York (Asian Americans for Equality v.
Koch, 72 N.Y.2d 121, 517 N.E.2d 265, 531 N.Y.S.2d 782
[1988]; Freeman v. City of Yonkers, 205 Misc. 947, 129
N.Y.S.2d 703 [Sup. Ct. Westchester Co. 1954]),'° as it is else-
where (Cassel v. City of Baltimore, 195 Md. 348, 73 A.2d
486 [1950]; Little v. Board of County Commrs., 631 P.2d
1282 [Mont. 1981]; Kozesnik v. Township of Montgomery,
24 N.J. 154, 131 A.2d 1 [1957]; Higginbotham v. City of The
Village, 361 P.2d 191 [Okla. 1961]; Palazzi v. State, 113 R.1.
tral Transp. Co. v. City of New York, 42 N.Y.2d 324, 330, aff’d 438
U.S. 104).’’ (Society for Ethical Culture v. Spatt, 51 N.Y.2d 449, 454,
415 N.E.2d 922, 434 N.Y.S.2d 932 [1980]). Significantly, the page cita-
tion to the New York Court of Appeals’ Penn Central decision is to the
very language upon whose meaning Justices Brennan and Rehnquist
disagreed when that case reached this Court.
15 While sometimes used (also in a pejorative sense) as synonymous
with ‘‘spot zoning’’, ‘‘piecemeal zoning’’ is usually more precisely
defined as ‘‘when only part of the land within a municipality is regu-
lated by the zoning law’’ (Asian Americans for Equality v. Koch, 72
N.Y.2d 121, 130, 527 N.E.2d 265, 531 N.Y.S.2d 782 [1988]).
16 ‘*{I}t is clear that, as a general proposition, a local legislative body
does not have the power to re-zone property along a main artery of tra-
vel, lot by lot at a time. Such would be piecemeal zoning, which is gen-
erally prohibited’’ (at 956).
14
218, 319 A.2d 658 [1974]; City of Pharr v. Tippitt, 616
S.W.2d 173 [Tex. 1981]; Shelton v. City of Bellevue, 73
Wash.2d 28, 435 P.2d 949 [1968]; Bell v. City of Elkhorn,
122 Wis.2d 558, 364 N.W.2d 144 [1985]).
While this Court has never had occasion expressly to hold
that a comprehensive plan is a constitutional requirement
(indeed, this Court has rarely considered zoning cases, thus
leaving the development of jurisprudence in this field largely
to the State courts), decisions of this Court have assumed the
necessity of a plan. Thus, in Penn Central, Justice Brennan
noted for the majority (at 133 n. 29) that
‘*When a property owner challenges the application of
a zoning ordinance to his property, the judicial inquiry
focuses upon whether the challenged restriction can
reasonably be deemed to promote the objectives of the
community land-use plan, and will include consideration
of the treatment of similar parcels. See generally Nectow
v. Cambridge, 277 U.S. 183 (1928).”’
See also Justice (now Chief Justice) Rehnquist in dissent in
Penn Central at 139-40; Justice Blackmun, concurring and
dissenting in Brendale v. Confederated Tribes, 492 U.S. 408
at 458 (1989) (‘‘the systematic and coordinated utilization of
land that is the very essence of zoning authority’’); and the
discussion of Euclid v. Ambler Realty Co., 272 U.S. 365
(1926), in the concurrence by Justice Stevens in Moore v.
City of East Cleveland, 431 U.S. 494 at 514-15 (1977).
State court decisions have made it indisputably clear that
the rationale of the prohibition upon piecemeal zoning, and
of the corresponding requirement of a comprehensive plan, is
the necessity of keeping the restrictions of zoning within the
police power, and of protecting against arbitrary and capri-
cious discrimination by the zoning authorities. The require-
ment of a plan is thus grounded in the Constitutional
protections of Due Process and Equal Protection (see, e.g.,
Asian Americans, supra, 72 N.Y.2d at 131; Kozesnik, supra,
24 N.J. at 166).
15
It is therefore submitted that the constitutional underpin-
nings of landmarking, only briefly considered by this Court
in Penn Central (and never before or since), bear further con-
sideration. Certiorari ought therefore issue herein.
THE SPECIAL DEMOLITION PERMIT REQUIREMENT
CONSTITUTES UNCONSTITUTIONAL REVERSE
SPOT-ZONING
It is clear that the police power to enact or enforce zoning
restrictions is not unlimited (City of Cleburne v. Cleburne
Living Center, 473 U.S. 432 [1985]). In particular, courts
have routinely intervened and struck down zoning restrictions
as not being a proper use of the police power in a class of
cases, often referred to as ‘‘spot zoning’’ cases.
‘‘Spot zoning’’ is commonly defined as the process of
singling out a parcel of land for a use classification totally
different from that of the surrounding area, for the benefit
of the owner of such property and to the detriment of the
surrounding landowners (Munger v. Town of Exeter, 128
N.H. 196, 512 A.2d 418 [1986]; Clark v. City of Boulder,
146 Colo. 526, 362 P.2d 160 [1961]; Salvetti v. Zoning Board
of Adjustment, 429 Pa. 330, 240 A.2d 534 [1968]). ‘‘Reverse
spot zoning’’ occurs where a governing authority rezones a
particular property in a certain deleterious manner, although
the property in the adjoining area is zoned or rezoned in a
different and more beneficial manner. See Tollius v. City of
Miami, 96 So.2d 122 (Fla. 1957); Jackson v. Wilson, 195
So.2d 470 (Miss. 1966); Odabesh v. Mayor and Council of
the Borough of Dumont, 65 N.J. 115, 319 A.2d 712 (1974);
Fred F. French Investing Co. v. City of New York, 39
N.Y.2d 587 (1976), 385 N.Y.S.2d 5, 350 N.E.2d 381, app.
dism. and cert den., 429 U.S. 990 (1976); Vernon Park
Realty v. City of Mount Vernon, 307 N.Y. 493, 121 N.E.2d
517 (1954).
In the case at bar, the City, by virtue of the enactment of
the Special Demolition Permit, has discriminatorily segre-
16
gated forty-four parcels and subjected them to special detri-
mental criteria that are not applicable to other parcels
similarly situated, which, in contrast, were upzoned. A condi-
tion of the Special Demolition Permit ([81-742[c][2], App.
82a) means that a new structure replacing a Listed Theatre
may be required to have substantially more floor space
devoted to entertainment-related uses than a new structure on
a neighboring non-Listed Theatre site, when the only distinc-
tion between the two sites is that they have had a different
history of use. This is exactly what the controlling authorities
condemn as unlawful reverse spot zoning.
Reverse spot zoning, as exemplified by the Special Demoli-
tion Permit requirement, is plainly and simply the unjustified
and uncompensated frustration of private property rights for
the ostensible benefit of the public. No matter how laudable
the public goal may be, this discriminatory zoning mechanism
is impermissible. This Court ought therefore grant a writ of
certiorari to review the constitutionality of the Special Demo-
lition Permit requirement.
17
CONCLUSION
This case presents substantial questions as to the proper
application by State courts of Penn Central and other Tak-
ings Clause precedents to landmark designations, and invites
explications by this Court of the Constitutional relation of
the comprehensive plan, and its conceptual opposite, piece-
meal or spot zoning, to land use regulation. The petition for
a writ of certiorari ought therefore to be granted, and peti-
tioners allowed to file their brief articulating at greater length
and in greater depth why fundamental principles of constitu-
tional law mandate a reversal herein.
Respectfully submitted,
PARKER CHAPIN FLATTAU & KLIMPL
Attorneys for Petitioners
The Shubert Organization, Inc.
Jujamcyn Theatres Corporation,
The League of American Theatres
and Producers, Inc., and
239-247 West 45th Street Corp.
1211 Avenue of the Americas
New York, New York 10036
(212) 704-6000
Of Counsel:
ALVIN M. STEIN”
AMOS ALTER
SHARON H. STERN
17 Counsel of Record
18
PROSKAUER ROSE GOETZ & MENDELSOHN
Attorneys for Petitioners
Nederlander Organization Inc.,
Nederlander Amusement Corp. of Mary-
land, Nederlander Theatrical Corp.,
All State Amusement Co. of Illinois, Inc.,
Hellinger/Nederlander 46th Street Corp.,
Lunt Theatre Co. (A New York General
Partnership), Rose Nederlander Associ-
ates, Inc., and Alvin Nederlander Associ-
ates, Inc.
1585 Broadway
New York, New York 10036
(212) 969-3000
Of Counsel:
GREGG M. MASHBERG
February 25, 1992
APPENDIX
la
Opinion of New York Supreme Court, Appellate
Division, First Judicial Department, dated May 16, 1991
(Reported at 166 A.D.2d 115, 570 N.Y.S.2d 504)
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION, FIRST DEPARTMENT
§ E. Leo Milonas, J.P.
f Richard W. Wallach,
’ Sidney H. Asch,
Bentley Kassal,
George Bundy Smith, JJ.
a=
THE SHUBERT ORGANIZATION, ef al.,
Petitioners-Plaintiffs-A ppellants,
For a Judgment Pursuant to CPLR Article 78 and
a Declaration Pursuant to CPLR 2001,
—against—
LANDMARKS PRESERVATION COMMISSION OF
THE CITY OF NEW YORK, ef ai.,
Respondents-Defendants-Respondents,
SAVE THE THEATRES, INC.,
Intervenor-Respondent-Defendant-Respondent.
os
ASCH, J
Petitioners, several theater owners as well as trade organi-
zations, had sought, inter alia, in this declaratory relief and
Article 78 proceeding, to annul the designation of twenty-two
Broadway theatres as landmarks, and to declare null and
void the underlying Landmarks Legislation and the anti-
2a
demolition provision of the New York City Zoning Resolu-
tion.
Petitioners claim that the designation process in this case
manifested an improper exercise in spot zoning, rather than a
detailed analysis leading to the designation of a specific
building or buildings as historic landmarks. The municipal
respondents counter that the different, respective, decisions
of the Landmarks Preservation Commission and the Board
of Estimate, were based on exhaustive studies and reports, as
well as public discussion on notice, and that the final vote of
the Board of Estimate, although accomplished expeditiously,
was not simply expediently arrived at and was supported by a
rational basis.
The present challenge is both for a declaratory judgment,
invoking the constitutional challenge, and on Article 78
grounds (see generally) Morris, New York Practice Guide:
Land Use Regulation (Matthew Bender, 1988), Vol. 2, Sec.
17.05(3)(b)(vi)(A). The Landmarks Law seeks to protect those
buildings, structures and landscape features which have a spe-
cial character or have special historic or esthetic interest or
value. The statutory vehicle for protection is either a designa-
tion as landmarks or their inclusion within historic districts.
There is a distinction between the criteria for designation of
an individual landmark or an interior landmark, on the one
hand, and the criteria for designation of an historic district,
on the other hand. (/d., et Sec. 17.05(3)(b)(vii)(B), (C)).
In December of 1967, the Board of Estimate approved the
City Planning Commission’s proposal to create a special the-
atre district, to protect the district from the expansion of
midtown construction. The Special District roughly approxi-
mated the Times Square area. The City Planning Commission
sought to encourage the construction of new theatre space in
newly constructed building by giving a bonus with respect to
the utilization of space. The city as well as the State Office of
Parks, Recreation and Historic Preservation, entered a mem-
orandum of agreement with the federal government which
required the city to begin consideration of landmark status
for theatre buildings within the Broadway theatre district.
The Landmarks Preservation Commission selected 35 theatres
3a
for potential designation, which included the 22 theatres rele-
vant to this appeal. The municipal authorities took heed of
the public outcry following the demolition of the Helen
Hayes and Morosco Theatres in 1982 and subsequently, the
midtown zoning amendments to the Zoning Resolution tar-
geted Broadway theatres to enhance their preservation. The
zoning amendment continued the space use bonuses for con-
struction of new theatres, and gave bonuses for the rehabili-
tation of specified theatres. Special permits for demolition
were required as to 44 listed theatres.
The Landmarks Preservation Commission calendared pub-
lic hearings to consider the designation of 45 Broadway the-
atres. These were scheduled in June of 1982, to allow
preparation of reports on the historical, cultural, and archi-
tectural significance of the individual theatres. Respondents
contend that the petitioners received individual notice and
offered testimony. While not required as part of the process,
Community Board 5 eventually voted in favor of landmark
designation for all of the listed theatres. The record was kept
open for additional comments and petitioners’ architect sub-
mitted a report, analyzing the listed theatres. From April 21,
1984 through January 5, 1988, the Landmarks Preservation
Commission held 29 public executive sessions for consider-
ation of the subject designations. On August 6, 1985, the
Commission designated exteriors and/or interiors of three
theatres as landmarks.
In December of 1985, and March of 1987, respectively, the
Landmarks Preservation Commission compiled two reports
on preservation of the Broadway theatres and guide lines
therefor. The record shows that the Landmarks Preservation
Commission consistently received copious materials from
numerous sources emphasizing the unique qualities, as set
forth by the statutory criteria, relevant to each theatre. There
is also evidence that at many of the executive sessions, a staff
member would present the cultural, historical, architectural,
and/or aesthetic value of each of the listed theatres. Further,
a 35-to-40-page designation report was prepared for each
building. Each theatre was then addressed, in alphabetical
order, at public executive sessions commencing November 4,
4a
1987. Respondents note that again petitioners were given
notice and attended the meetings. Between November 4, 1987
and January 5, 1988, the Landmarks Commission designated
the interior and exterior of nineteen of the listed theatres, the
interior of 7 theatres, and the exterior of 2 more theatres.
Thirteen theatres were not designated during this process. Of
the 28 designated theatres, petitioners own 22; of the 13 non-
designated theatres, petitioners own 10. Within five business
days of each designation, the Landmarks Preservation Com-
mission filed the designation reports with the Board of Esti-
mate. After a public hearing, the Board of Estimate ratified
the designations of all of the listed theatres in a single vote.
Respondents note that this practice of a single vote on related
matters has been the usual procedure of the Board of Esti-
mate since 1950, and is the norm for approving or disapprov-
ing landmark designations.
After the Board of Estimate approved these matters, in
October of 1987, the Landmarks Preservation Commission
issued 47 landmark designations for 28 theatres, in alphabeti-
cal order, which gave rise to the present action. (Some the-
atres are landmarked as to interior as well as exterior).
Petitioners assert that the landmark designations, both
interior and exterior, have had detrimental effects on the
owners’ ability to adapt theatres to changing productions and
changing times. They also submit there is a cost factor borne
by the owners, in keeping up the theatres, and by producers
who use the landmarked theatres.
Further, petitioners attack the voting procedure of the
Board of Estimate when, in approving these designations, it
exercised a single roll-call vote. Petitioners argue that these
are separate structures with no common architectural style
and thus the single roll-call vote underscores their contention
that the purpose was to preserve the theatre industry by
means of sham designations. Petitioners note the boilerplate
introduction to the description and analysis in each report for
each theatre, as bearing untoward uniformity. Petitioners
also emphasize their contention that this was protection of an
industry, rather than of individual buildings, by noting that
those theatres within the theatre subdistrict which were not
a
Sa
landmarked were not currently in use as legitimate theatres,
or otherwise were protected from demolition. Further, peti-
tioners argue that the aesthetic, cultural, and architectural
attributes of the landmarked, and the nonlandmarked the-
atres are essentially indistinguishable.
Petitioners then challenge the procedure in Supreme Court
where the court refused to hold an evidentiary hearing. The
hearing, characterized as evidentiary, would have inquired
into whether the Board of Estimate followed routine proce-
dure in having a single roll-call vote. However, on appeal,
petitioners argue that an evidentiary hearing would have
inquired into whether evidence existed that the City was seek-
ing to regulate the theatre industry as a whole, in violation of
the mandates of the various agencies.
This court is circumscribed by the scope of judicial review
of administrative determinations. It is well established that
the court may not substitute its judgment for that of the
administrative body (see generally, with respect to landmarks,
Matter of Society for Ethical Culture v. Spatt, 68 A.D.2d 112
(Ist Dept. 1979), aff’d, 51 N.Y.2d 449). This Court has
already noted the particular expertise of the members of the
Landmarks Preservation Commission supra, at 117; accord,
Matter of Committee to Save the Beacon Theatre v. City of
New York, 146 A.D.2d 397, 405 [lst Dept. 1989]). Consider-
ing the wealth of analyses and reports, as well as anecdotal
testimony, provided to the Landmarks Preservation Commis-
sion prior to the subject designations, it appears to be beyond
serious challenge that a reasonable basis existed for the desig-
nations as to each theatre, upon a consideration of the statu-
tory criteria.
There is no basis to argue that the proposals were ‘‘rail-
roaded’’ through the Landmarks Preservation Commission;
the preliminary analyses and reports were exhaustive, the
decision making occurred over the course of several years.
Three days of public hearings simply concluded the input into
the decision making, and the fina] decisions do not appear to
have been arrived at with any great dispatch. While petition-
ers complain of the limited time allowed to them for com-
ments before the Board of Estimate, there is no indication
6a
that they were deprived of a meaningful opportunity to sub-
mit their own reports or comments prior to the Board of
Estimate hearing, particularly at the Landmarks Preservation
Commission phase of proceedings.
Further, there is criticism by petitioners of the single roll
call vote by the Board of Estimate. But, the Board had
received individual reports, as well as the Planning Commis-
sion reports, prior to the Board of Estimate hearing. Finally,
in this regard, we note, as mentioned above, that since the
1950’s the Board had routinely entertained a single vote on
similar matters, particularly those involving zoning and land-
mark designations.
Manipulation of the Landmarks Law by the Landmarks
Commission only for the purpose of preserving the Broadway
theatre industry, rather than individual theatres, would have
been improper (see Landmarks Law [Admin. Code] § 25-304
subd. a). Such a practice would misconstrue zoning matters
for landmark matters. However, notwithstanding the district
within which the theatres stand, the designation proceedings
addressed the exteriors and/or interiors of the specific build-
ings in terms of the criteria of the Landmarks Law. (See gen-
erally Penn Central Transportation Co. v. City of New York,
438 U.S. 104, 133; affg. 42 N.Y.2d 324, 329-330). Municipal
respondents point out that the Landmarks Preservation Com-
mission has designated theatres which are located outside of
the Broadway District, such as the Apollo, the Beacon, City
Center, Carnegie Hall, and Town Hall, on the basis of the
same statutory criteria. This is further evidence that the
Landmarks Commission was not seeking to protect the
Broadway theatre industry by sham designations.
Accordingly, we agree with the nisi prius court that the
administrative determination was based on substantive evi-
dence, was not arbitrary and capricious and did not violate
the law.
With respect to the constitutional challenge, the Penn Cen-
tral case, supra, established the constitutionality of the Land-
marks Law. Petitioner’s challenge, that Penn Central is not
controlling since it did not address the method of designation
is without merit. Penn Central involved the alteration of a
Ta
landmark, a restriction which arises out of the designation.
Since the Supreme Court in Penn Central (supra, 438 U.S. at
138) clearly ruled that the application of the Landmarks Law
does not affect a taking of the property, the constitutional
challenge thereby is resolved. Further, under the standards set
forth in Spears v. Berle (48 N.Y.2d 254, 263) and Honore de
St. Aubin v. Flacke (68 N.Y.2d 66, 76), the petitioners have
not carried their burden of demonstrating that the Land-
marks Law as applied to these particular theatres denies them
essential use of their property.
Finally, with respect to the constitutional argument, the
scheme of law embodied in the Landmarks Act serves a legit-
imate purpose of saving historical landmarks (see Seawall
Associates v. City of New York, 74 N.Y.2d 92, 112, cert.
den. U.S. , 110 S. Ct. 500 [1989]). With respect to
any claim that petitioners are deprived of any economic use
of their property, in the absence of final agency action on
applications by petitioners for renovations or alterations, the
matter is not ripe for review (Church of St. Paul and St.
Andrew v. Barwick, 67 N.Y.2d 510 at 520; see permit provi-
sions for alternations or demolitions in Landmarks Law
[Admin. Code] §§ 25-306, 25-307). In the meantime, there is
no prohibition against petitioners receiving economic benefit
from continuing the use of the buildings as theatres (accord,
Penn Central, supra, at 136). In any event, transferable
development rights inure to the owners of these buildings,
which, absent a successful challenge, must be presumed to
have economic benefit. We note that some of petitioners, in
fact, have made use of these transferable developmental
rights.
Petitioners also challenge the provision of the Zoning Res-
olution (Zoning Resolution § 81-742) which requires listed
theatres to obtain a special permit from the City Planning
Commission for demolition. This, of course, is a zoning mat-
ter, rather than a landmark matter. Petitione: bears the
heavy burden of demonstrating the unconstitutionality of the
zoning ordinance (Robert E. Kurzius, Inc. vy. Incorporated
Vil. of Upper Brookville, 51 N.Y.2d 338, 344) and discrimi-
natory effects of a statute will not render the statute invalid
8a
if there exists a reasonable basis (Lighthouse Shores v. Town
of Islip, 41 N.Y.2d 7, 12). There is no evidence that this pro-
vision is not based on a comprehensive plan and, as munici-
pal defendants point out, similar demolition permits are
required by the Zoning Resolution in several other special
districts.
Finally, considering the narrow scope of review available to
the court below, it cannot be said that with the volumes of
documentary evidence in the record and supporting affida-
vits, that there was a need to conduct an evidentiary hearing
to examine whether the Board of Estimate’s voting mecha-
nism was arbitrary and capricious, or in violation of law.
Since the court was not empowered to substitute its own
judgment for that of the administrative body, the only
inquiry was whether the record, as submitted, supported the
voting procedure and the determination. We agree that it did.
Accordingly, the order and judgment (one paper) oi the
Supreme Court, New York County (Irma Vidal Santaella,
J.), entered February 6, 1990, which denied petitioners’
motion for summary judgment, granted summary judgment
to municipal respondents, and dismissed the petition and
complaint, should be affirmed, without costs or disburse-
ments.
All concur.
a
9a
Opinion of New York Supreme Court, New York County
dated December 5, 1989
(Unreported)
SUPREME COURT: NEW YORK COUNTY
INDIVIDUAL ASSIGNMENT PART 35
Index No. 12587/88
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IN RE: SHUBERT ORGANIZATION, INC., ef ai.,
Petitioners,
—against—
LANDMARKS PRESERVATION COMMISSION OF
THE CITY OF NEW YORK, ef ai.,
Respondents.
-
HON. IRMA VIDAL SANTAELLA
Petitioners bring this combined action and proceeding, pur-
suant to Articles 30 and 78 of the CPLR, for a judgment 1)
declaring void and vacating each landmark designation of
twenty-two individual theatre buildings, 2) declaring invalid
the Special Demolition Permit requirement, 3) declaring the
Landmarks Preservation Law (‘‘Landmarks Law’’) void and
4) remanding the matter of theatre preservation to respon-
dents for further consideration.
Petitioners, other than The League of American Theatres
and Producers, Inc. (a trade association representing the
interests of theatre owners and producers), own one or more
of the theatres in issue:
Theatre Address
Barrymore 243-251 W. 47th Street, N.Y., N.Y.
Martin Beck 302-314 W. 4Sth Street, N.Y., N.Y.
Belasco 111 W. 44th Street, N.Y., N.Y.
Booth 222-232 W. 45th Street, N.Y., N.Y.
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Theatre Address (Cont.)
Brook Atkinson 256-262 W. 47th Street, N.Y., N.Y.
Broadhurst 235-243 W. 44th Street, N.Y., N.Y.
Cort 138-146 W. 48th Street, N.Y., N.Y.
Forty Sixth Street 226-236 W. 46th Street, N.Y., N.Y.
Golden 252-256 W. 4Sth Street, N.Y., N.Y.
Mark Hellinger 217-239 W. Sist Street, N.Y., N.Y.
Imperial 249 W. 45th Street, N.Y., N.Y.
Longacre 220 W. 48th Street, N.Y., N.Y.
Lunt-Fontanne 203-217 W. 46th Street, N.Y., N.Y.
Lyceum 149-157 W. 4Sth Street, N.Y., N.Y.
Majestic 245-257 W. 44th Street, N.Y., N.Y.
Music Box 239-247 W. 57th Street, N.Y., N.Y.
Eugene O'Neill 230-238 W. 49th Street, N.Y., N.Y.
Plymouth 236 W. 4Sth Street, N.Y., N.Y.
Royale 242-250 W. 4Sth Street, N.Y., N.Y.
St. James 246-256 W. 44th Street, N.Y., N.Y.
Shubert 221-233 W. 44th Street, N.Y., N.Y
Winter Garden 1634-1646 Broadway, N.Y., N.Y.
Respondents are the Landmarks Preservation Commission
(‘“‘LPC’’), the City Planning Commission (‘‘CPC’’), the
Board of Estimate (‘‘BOE’’) and the City of New York.
Save the Theatres, Inc., Actors’ Equity Association, Soci-
ety of Stage Directors and Choreographers, United Scenic
Artists Local 829, Dramatist Guild, National Trust for His-
toric Preservation in the United States, New York Landmarks
Conservancy, Inc., Municipal Arts Society and the National
Center for Preservation Law have intervened as amici curiae
urging dismissal.
The petition and complaint, as amended (the ‘‘petition’’)
sets forth eleven causes of action. The first cause alleges the
BOE and LPC exceeded their powers under the Landmarks
Law (New York City Administrative Code Title 25 Chapter
3) and the landmark designations were arbitrary, capricious,
an abuse of discretion and illegal as unauthorized under the
New York City Charter, the Landmarks Law and its enabling
legislation, General Municipal Law (‘‘GML’’) Article 5 Sec-
tion 96-A.
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The second cause alleges BOE violated the Landmarks
Law, GML 96-A, general principles of due process and
administrative law and its own practices regarding designa-
tions of landmarks and were arbitrary, capricious, an abuse
of discretion and illegal in that BOE failed to consider each
individual building on its own merits and in voting by means
of a single roll call vote to approve LPC’s designation of
twenty-eight individual theatre buildings on March 10, 1988.
The third cause alleges the LPC and/or the BOE violated
the Landmarks Law, GML 96-A, general principles of due
process and administrative law by failing to have a transcript
of the public hearings held in 1982 at the time when LPC
designated the buildings as landmarks and/or when the BOE
voted to approve the designations.
As a fourth cause, petitioners allege the designations inso-
far as they included theatre interiors constituted unreasonable
governmental interference with the essential need for prompt
and cost-efficient accommodation of interior facilities to the
varying and distinct needs of changing theatre productions
and were arbitrary, capricious and an abuse of discretion.
As a fifth cause, petitioners allege respondents’ failure to
determine the environmental significance of the designations
was arbitrary, capricious, an abuse of discretion and illegal
rendering the designations void since under the State Envi-
ronmental Quality Review Act (‘‘SEQRA’’) (Environmental
Conservation Law Article 8 [‘‘ECL’’]), the designations are
‘factions’? which may have a significant effect on the envi-
ronment in New York City.
The sixth cause alleges the landmarks law is unconstitu-
tional on its face insofar as its exemption for properties not
making a reasonable return is insufficient and unreasonable
because its hardship provision [25-309) is inadequate.
The seventh, eighth and ninth causes allege the listed the-
atres which have not been landmarked are subject to the Spe-
cial Demolition Permit requirement which is ultra vires and
void as New York City Zoning Resolution 81-742 (‘‘ZR’’) is
beyond the powers vested in the CPC; is illegal and unconsti-
tutional on its face as it places a disproportionate burden of
preserving the theatre industry solely upon the owners of
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property with theatres rather than upon all property owners
in Midtown Theatre Subdistricts and fails to provide a hard-
ship exemption.
The tenth cause alleges the designations constitute a ‘‘tak-
ing’’ of property without just compensation in violation of
petitioners’ substantive and procedural due process and equal
protection rights under the state and federal constitutions.
The eleventh cause alleges damages, to be proved at trial,
of not less than $200,000,000.
Respondents have served their amended answers and have
interposed a combined total of fifteen affirmative defenses
requesting dismissal of the petition and complaint.
In their first defense, respondents LPC, BOE and the City
of New York allege the LPC’s determination to designate
each of the subject theatres was reasonable, is not arbitrary
and capricious as it is fully supported by the record submit-
ted herein; the second, the LPC’s determination to designate
each of the subject theatres was made on an individual basis,
not in a wholesale fashion as each theatre was designated on
its own individual merit and not as an industry; the third, the
landmark designations were effectuated by LPC and
approved by the BOE in accordance with applicable Due Pro-
cess standards and that petitioners were given notice and
opportunity to be heard at every stage of the designation pro-
cess; the fourth, LPC’s adoption of Guidelines for the Treat-
ment of Designated Broadway Theatre Exteriors and Interiors
is a valid exercise of LPC’s regulatory power to assist in the
preservation of landmarks; the fifth, the subject landmark
designations are not subject to the State Environmental Qual-
ity Review Act (SEQRA) and City Environmental Quality
Review (CEQR) and that the designation process is exempt
from these environmental provisions because the designation
of a building as a landmark is not an ‘‘action’’ within
SEQRA and CEQR; the sixth, petitioners have no standing
to raise environmental claims because they only raise claims
of economic damage in the petition.
In the seventh, respondents contend that the hardship pro-
vision of the Landmarks Law (Section 25-309) is constitu-
tional and valid, and in the eighth and ninth, respondents
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allege that petitioners’ challenge to the constitutionality of
the hardship provision and landmark designations is prema-
ture as no hardship application has been filed. Neither has
any application for any permit of demolition or certificate of
alteration been made by petitioners.
In the tenth, respondents allege petitioners’ claim of an
unconstitutional taking of their properties without just com-
pensation by virtue of landmark designations is premature as
they have not yet suffered a specific hardship or availed
themselves of statutory methods to be relieved of any such
alleged hardship. In the eleventh, LPC, BOE and the City
allege petitioners have not been hindered in the continued use
of their properties as theatres and therefore, the designations
of the subject theatres as landmarks does not constitute an
unconstitutional taking.
Respondent CPC interposes four affirmative defenses in its
amended answer:
In the first, CPC alleges the Special Demolition Permit
(““SDP’’) (ZR Section 81-742) is not ultra vires; the second,
that SDP is constitutional and lawful in all respects; the
third, that review of the SDP is premature; and the fourth,
that all respondents have worked in accordance with a com-
prehensive zoning plan to preserve the character of the The-
atre District.
By notice of motion, dated December 5, 1988, petitioners
have moved for summary judgment (CPLR 3212) granting
the relief sought in their petition. By notice of cross-motion,
dated December 6, 1988, respondents have moved to dismiss
the petition (CPLR 7804(f)) and the complaint (CPLR 3211)
or for summary judgment (CPLR 3212).
It is noted that while these motions were noticed prior to
service of the amended pleadings, the essential allegations
and defenses remain substantially the same. The need for the
amendment was recognized by the parties and the Court
when respondents first learned that the stenographer’s notes
of the public hearing held in 1982 before the LPC had not
been déstroyed (as originally thought) but were located and
made available for transcription. The transcript is now made
part of this record. The pleadings, as amended, include two
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new claims and related defenses. The first claim, relates to
the absence of the transcript before the LPC and the BOE.
The second relates to the BOE’s method of voting on the
landmark designations.
Now, the motion and cross-motion are considered together
with oral arguments by all parties made before the Court
prior to and at the time of final submission on June 15,
1989. Additional submissions were received as late as August
2, 1989.
In their amended petition and complaint, verified May
1989, petitioners allege:
‘*The City of New York engaged in an ill-conceived and
shortsighted effort to preserve the Broadway theatre
industry, has taken drastic and illegal action to prevent
the demolition or alteration of buildings currently hous-
ing legitimate theatre. The Landmarks Preservation
Commission, proceeding in alphabetical order by theatre
name, has designated as a landmark virtually every
building located in the Broadway Theatre District cur-
rently in use as a legitimate theatre. In parallel fashion,
the City Planning Commission has created a list of legit-
imate theatres and prohibited their demolition by enact-
ing discriminatory demolition requirements should
landmark restrictions not apply.
The City’s actions threaten to stultify rather than revi-
talize legitimate theatre in the Broadway Theatre Dis-
trict. The restrictions were imposed without a proper
plan in utter disregard of the economic realities of the
Broadway theatre industry. The theatre owners and
producers—whose continued economic vitality is central
to the health of Broadway theatre—have been precluded
from sharing in the economic growth of the west side of
Midtown, and have had the greater part of the value of
their theatre properties taken from them. Additionally,
the landmarks restrictions prevent the owners and pro-
ducers from incorporating state-of-the art technologies
in their theatres, and adapting their theatres to the sce-
nic and structural demands of various productions,
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unless the interiors are restored to their previous condi-
tion at enormous costs.
The restrictions the City had adopted to achieve its
goals are plainly unauthorized by the state legislation
establishing the City’s powers to enact landmark and
zoning restrictions. The wholesale landmark designations
were made as part of a pre-conceived plan to landmark
the theatre industry, without a good faith individual
assessment of the aesthetic, historic and cultural merit of
each structure. By imposing discriminatory and onerous
burdens on the theatre owners, the City has violated
fundamental notions of fairness, Due Process, and
Equal Protection under the Federal and State Constitu-
tions. Further, the City’s actions were taken in complete
derogation of the provisions of state law requiring gov-
ernmental officials to determine whether their actions
may have a significant impact on the physical environ-
ment, which includes existing patterns of neighborhood
growth and development and community character.
While petitioners, who own and operate the theatre
properties in issue, have not sought to demolish a the-
atre in twenty years and have no present intent to do so,
the City’s illegal actions should nonetheless be annulled,
and the City should be required to re-think and re-
examine its approach to preserving the Broadway theatre
industry consistent with government principles of law.”’
Respondents’ position is petitioners’ claims are not ripe for
review, the landmark designations and zoning resolution are
proper, the environmental laws do not apply, there have been
no due process or equal protection violations and there has
been no unconstitutional ‘‘taking’’ of property.
The voluminous record herein includes the following
excerpt which compromises a comprehensive history of
Broadway theatre:
“‘The theatre industry is crucial to the cultural and
financial life of the city. Tourism is New York’s number
one nonmanufacturing industry. In 1986, seventeen mil-
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lion visitors brought $2.5 billion dollars into the city and
tax revenues of $265 million. Of these visitors, nearly
half came to the city primarily for cultural purposes.
And it is the Broadway theatre that holds first place on
the list of cultural attractions. Seeing a Broadway show
is the single most important reason why tourists visit
New York City. The Broadway theatre outdraws all
other cultural and sporting events. Over seven million
Broadway theatre tickets were sold in 1986-87 season.
Thirty-seven thousand persons are employed as actors,
stage hands, technicians, writers, etc. The area around
Times Square provides support services to the theatre
industry—shops, restaurants, hotels, customers,
rehearsal halls, music and taxis.
The Broadway Theatre District is the largest and most
famous concentration of legitimate stage theatres in the
world. The Broadway theatre shares an important role
in the development of theatre within the City of New
York and dramatic arts in America. The Broadway The-
atres were constructed during the first thirty years of
this century, a time when the Theatre industry within
New York City was undergoing a fertile period of
rebirth. At the turn of the century, the Theatre business
moved into what was then known as ‘‘Long Acre
Square’’, now known as Times Square. Having moved
gradually northward ail during the 19th century, New
York’s theatre district finally came to rest at Time
Square, where it has remained for almost ninety years.
All of the subject theatres were built between 1901
and 1927, years when the City experienced its single
most fertile period of theatre construction. This bur-
geoning growth of the theatre Industry in the Times
Square area coincided with a number of developments
which coalesced to heighten the importance of that area
as a major hub of the City. That steady evolution of the
City’s transportation system, ever focused on the Times
Square area, made that a prime location of Theatre
entertainment.
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In addition, at the turn of the century, the method of
presenting a play was undergoing a fundamental change.
The ‘‘stock system’’ whereby actors worked in one the-
atre for a season in a variety of plays was replaced by
the ‘‘combination system’’ under which a company of
actors appearing in a single show would tour from city
to city. Important to the viability of the combination
- System was a single location to cast, rehearse and
develop a show for a cross-country tour. New York
became the headquarters for the combination system.
The construction of the Broadway Theatres, was an
important development in the City’s cultural history as a
center for theatre entertainment. In addition, this ongo-
ing period of theatre building witnesses an evolution of
theatre design and architecture. The increase of theatre
construction after the turn of the century gave rise to a
new attitude in design from the 19th century style to the
20th century style of fan-shaped seating, fewer balconies
and a lower and wider proscenium. Seventy-two theatres
were constructed in New York City shortly before and
shortly after World War I. From the time of the depres-
sion until the 1960’s no new playhouses were con-
structed.
Because the subject theatres were built at a time when
New York was the springboard for theatre performance
and architecture, these theatres set the tone for theatre
construction throughout the country, because produc-
tions launched in New York required similar accommo-
dation in other cities. Thus, the subject theatres
participated in and by their very existence demonstrate
the rich cultural and historical heritage of the City of
New York and of the nation.
The playhouses still standing in the Broadway Theatre
District share among them over eighty years of Ameri-
can theatrical history. It was in the Broadway Theatres
that the beginning of a distinctly American drama could
be seen. On Broadway in the 1920's the work of a new
generation of playwrights was seen—Eugene O’Néeill,
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Maxwell Anderson, George S. Kaufman, and others. In
the 1930’s the Broadway theatre produced work of polit-
ical and social concern written by Lillian Hellman,
Robert Sherwood, and Thornton Wilder. In the 1940’s
and 50’s Tennessee Williams, Arthur Miller and William
Inge wrote for the Broadway stage. Meanwhile, musical
comedy had blossomed into a uniquely American art
form, producing the works of Rogers and Hammerstein,
Cole Porter, Irving Berlin, Jerome Kern and many
others.
A factual background is as follows:
In 1967, the BOE approved CPC’s proposal to establish
the Special Theatre District in response to a threat to the the-
atre industry posed by the expansion westward of Midtown
office construction. This was the first of many Special Dis-
tricts in the City. Developers were induced to include legiti-
mate theatres in new office buildings by granting the Highest
Floor Area Ratio (‘‘FAR’’) allowed. Since 1967, five new
theatres have been building in the Special Theatre District.
In the mid 1970’s a proposal by the City to revitalize Time
Square included building a major hotel at Broadway and 45th
Street. The project then known as the Portman Hotel (now
the Marriott-Marquis Hotel) was subject to the National His-
toric Preservation Act of 1966 (16 U.S.C. 470(f)), as
amended 90 Stat. 320 (the ‘‘Act’’) because financing was to
be supplied, in part, by the federal government. The Helen
Hayes and Morosco theatres occupied the Portman Hotel
site. Under the Act, the City had to determine if these the-
atres were eligible for inclusion in the National Register of
Historic Places. The Helen Hayes Theatre was found eligible
and the City was required to find ways to mitigate adverse
effects of the proposed demolition.
In 1978, the LPC began a preliminary study of the west
side of Midtown Manhattan, including the Broadway Theatre
District, to identify buildings potentially worthy of landmark
status. Initially, LPC listed thirty-five theatres (‘‘listed the-
atres’’) for further consideration.
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In 1979, an agreement was entered between the Federal
Advisory Council on Historic Preservation and the City in
conjunction with the New York State Office of Parks, Recre-
ation and Historic Preservation to take ‘‘reasonable and
appropriate measures to locate, identify and preserve signifi-
cant buildings”? in New York City. The agreement provided
“‘where appropriate, the process of landmarking . . . will be
initiated.’’ Also in 1979, CPC considered rezoning in mid-
town Manhattan to encourage more real estate development
on the west side by increasing the allowable bulk of new
buildings.
In March 1982, the Helen Hayes and Morosco Theatres
were razed in the midst of public demonstrations which led to
an outpouring of public concern by the citizenry at large for
the safety of other theatres. On May 13, 1982, Midtown zon-
ing amendments to the Zoning Resolution were passed. The
amendments included special provisions relating to Broadway
theatres—the Special Regulations for Theatre Subdistrict.
(ZR 81-70). The purpose of the regulations was ‘“‘to preserve
and protect the character of the theatre subdistrict as a cul-
tural and theatrical showcase.’ (ZR 81-71). Floor Area Ratio
(‘‘FAR’’) bonuses were also given for rehabilitation of cer-
tain listed theatres. (ZR 81-745). Other provisions were uti-
lized to help preserve the character of the area as an
entertainment center. (ZR 81-721, 722 and 723). LPC added
nine more theatres to the original list of thirty-five for a total
of 44 listed theatres. To demolish a listed theatre, the owner
was required to meet certain criteria and obtain a Special
Demolition Permit from CPC. (ZR 81-742). Transfer of
unused Development Rights (air rights above existing build-
ings) is regulated by the Zoning Resolution. The 1982 Zoning
Resolution amendments included a provision which benefited
listed theatres only. If certain conditions are met, transferable
development rights (‘“‘TDR’’ ’s) may be used in a manner not
otherwise permitted. To qualify for this benefit, the theatre
Owner must agree to the continued use of the building as a
legitimate theatre. (ZR 81-743). Four theatres have already
benefited from the transfer of their TDR’s under ZR 81-743.
The four theatres, The Belasco, The Lyceum, The Palace and
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The Ritz, are all owned by petitioners. Owners of landmark
buildings are given benefits not available to owners of non-
landmark buildings. (See ZR 74-79, 711 and 712). Certain
additional benefits are given to owners of theatre buildings
designated as landmarks. (See ZR 81-747, 747(a), 747(b)).
With respect to the issues at hand, the record shows that
on April 12, 1982, LPC voted to calendar the listed theatres
for a public hearing to consider landmark designations. The
owners of all listed theatres received notice. The hearings
were held on June 14 and 15, 1982. At the request of peti-
tioners and Community Board No. 5, the public hearing was
continued on October 19, 1982 so petitioners could submit
their reports on the historical, cultural and architectural sig-
nificance of each building under consideration. (Petitioners
subsequently commissioned a second report which was sub-
mitted to LPC.) Prior to and during the course of hearings
LPC received numerous letters from members of the theatre
industry, local and national figures, politicians and the gen-
eral public in support cf designation. Approximately 80 peo-
ple testified on behalf of themselves or membership
Organizations. Reports on the architectural, historical, cul-
tural and aesthetic importance of the theatres were submitted
to LPC by a number of groups. Petitioners received advance
notice of the hearings to be held and appeared and partici-
pated fully. Petitioners commissioned and submitted reports
for consideration by LPC.
The ZR required the Mayor of the City of New York to
appoint a Theatre Advisory Council (‘‘TAC’’) including a
chairperson, and representatives of the performing arts, the
theatrical industry and related professions to advise the CPC
concerning applications for special permits or certifications
pursuant to ZR 81-74. TAC was appointed and met 40 times
from July 1982 to May 1984. TAC had 15 members including
theatre owners, representatives of the community and of the-
atre unions, a theatre historian, a real estate developer, archi-
tects and lawyers. In June 1984, the Theatre Advisory
Council issued its report titled ‘‘To Preserve The Broadway
Theatre.’’ The report unabashedly stated its goal was the
preservation of all 44 (now 45) lisied theatres for legitimate
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theatre use. The report made a number of recommendations
regarding interior landmark designations, permanency of the
prohibition against demolition of any listed theatre, zoning
changes, encouragement of theatre-related uses and covenants
for preservation of theatres, and the use of bonuses. CPC
adopted these recommendations in a three phase comprehen-
sive plan. Other recommendations regarding certain real
estate tax relief and creation of a theatre trust have not been
adopted by CPC but implementation has been proposed by
the Mayor’s Office. The proposed Theatre Trust would be a
not-for-profit organization with a board of professional}
people and experts in the theatre industry. The Trust would
lease and operate a number of theatres including those owned
by petitioners. The owners would be relieved of the cost of
maintaining these theatres. A production company would be
established to develop and produce new dramatic plays, to
assist playwrights and reduce the costs of tickets for the pub-
lic. The proposed tax relief would apply to listed theatres not
used one-third or more of the year and would reduce prop-
erty tax within a range from about $160,000 to $525,000.
After the public hearings were concluded the LPC held 29
public executive sessions for further consideration and review
of each theatre for possible designation. These sessions began
on April 12, 1984 and concluded on January 5, 1988.
In August 1985 LPC voted to designate three theatres as
landmarks. These designations were submitted to the BOE
for final consideration. The BOE asked that LPC make its
decisions on all listed theatres and present them to BOE at
the same time rather than individually.
On March 10, 1988, the BOE heid a public hearing on
LPC’s designations. After the public hearing in which peti-
tioners participated, the BOE approved LPC’s designations.
The Landmarks Law (New York City Administrative Code
25-301 et. seq.) was enacted to protect historic buildings and
neighborhoods from precipitous decisions to destroy or
change their character.
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**§ 25-301 PURPOSE AND DECLARATION OF PUB-
LIC POLICY
A. The Council finds that many improvements, as
herein defined, and landscape features, as herein
defined, having a special character or a special historical
or aesthetic interest or value and many improvements
representing the finest architectural products of distinct
periods in the history of the city, have been uprooted,
notwithstanding the feasibility of preserving and contin-
uing the use of such improvements and landscape fea-
tures, and without adequate consideration of the
irreplacable loss to the people of the city of the aes-
thetic, cultural and historic values represented by such
improvements and landscape features. In addition, dis-
tinct areas may be similarly uprooted or may have their
distinctiveness destroyed, although the preservation
thereof may be both feasible and desirable. It is the
sense of the council that the standing of this city as a
world wide tounst center and world capital of business,
culture and government cannot be maintained or
enhanced by disregarding the historical and architectural
heritage of the city and by countenancing the destruction
of such cultural assets.
B. It is hereby declared as a matter of public policy
that the protection, enhancement, perpetuation and use
of improvements and landscape features of special char-
acter or special historical or aesthetic interest of value is
a public necessity and is required in the interests of the
health, prosperity, safety and welfare of the people. The
purpose of this chapter is to (a) effect and accomplish
the protection, enhancement and perpetuation of such
improvements and landscape features and of districts
which represent or reflect elements of the city’s cultural,
social, economic, political and architectural history; (b)
safeguard the city’s historic, aesthetic and cultural heri-
tage, as embodied and reflected in such improvements,
landscape features and districts; (c) stabilize and
improve property values in such districts; (d) foster civic
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pride in the beauty and noble accomplishments of the
past; (e) protect and enhance the city’s attractions to
tourists and visitors and the support and stimulus to
business and industry thereby provided; (f) strengthen
the economy of the city; and (g) promote the use of his-
toric districts, landmarks, interior landmarks and scenic
landmarks for the education, pleasure and welfare of the
people of the city.
A landmark is defined as:
‘“‘Any improvement, any part of which is thirty years
old or older, which has a special character or special
historical or aesthetic interest or value as part of the
development heritage or cultural characteristics of
the City, State or Nation, and which has been desig-
nated as a landmark pursuant to the provisions of
this chapter.’’ [25-302(n)].
The New York City Charter Section 534 established the
LPC to include eleven members with at least three architects,
one qualified histonan, one city planner or landscape archi-
tect and one realtor. The LPC is responsible for carrying out
the provisions of the Landmarks Law. The LPC has the
power, after a public hearing, to designate a landmark, land-
mark sites, interior landmarks, scenic landmarks and historic
districts. (Landmarks Law 25-303). Notice of public hearings
are to be given as provided in Landmarks Law Section 25-
313. After any such designation the LPC must file a copy of
its designating report with the BPE, CPC and other city
agencies. (Landmarks Law 25303(4)(f)). The BPE may notify
or disapprove such designation. (Landmarks Law 25-
303(4)(g)(2)).
After the BOE acts, the owner may seek judicial review of
any final designation decision. Owners of landmarks must
keep them ‘‘in good repair’? (Landmarks Law 25-311) and
seek approval from the LPC for proposed alterations or
improvements (Landmarks Law 25-305).
The issues presented on judicial review are whether respon-
dents proceeded in excess of jurisdiction, whether respon-
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dents’ determinations were made in violation of lawful
procedure, were affected by an error of law or were arbitrary
and capricious or an abuse of discretion and whether any of
petitioners’ constitutional rights have been violated. Upon
careful examination of the entire record, the Court finds the
amended petition and complaint lacking in merit and grants
respondents’ cross-motion in its entirety. Thus, petitioners’
motion must be denied as moot. Petitioners’ rather conclu-
sory assertions that respondents’ actions were, inter alia, ‘‘ill
conceived’’, “‘siiortsighted’’, ‘‘drastic and illegal’’, ‘‘plainly
unauthorized”’ and ‘‘onerous’’ are in sharp contrast with the
contents of the record.
As a threshold matter, the petitioners’ claims are mpe for
review because the petitioners’ papers present facial attacks
on various provisions of the Landmarks Preservation Law
and the amendments to the New York City Zoning Resolu-
tion.
Addressing the eleven causes of action seriatim: Petitioners
have not met their burden of proof on the first cause of
action by showing the landmark designations were arbitrary
or capricious or had no rational basis. Judicial review is lim-
ited to whether there is a rational basis for the determination
in issue. (Matter of Pell v. Board of Education, 34 N.Y.2d
222; Society for Ethical Culture in the City of New York v.
Spatt, 68 A.D.2d 112, aff’d, 51 N.Y.2d 449). The Court’s
function is complete once a reasonable basis in fact is found
in the entire record. (300 Gramatan Avenue Assoc. v. Div. of
Human Righis, 45 N.Y.2d 176). A reviewing Court may
annul a discretionary determination of an administrative
body only if the determination is illegal, arbitrary or capri-
cious. (Corliss v. Solomon, 75 A.D.2d 837). The court may
not substitute its own findings or judgment for that of the
agency. (See Newbrand v. City of Yonkers, 285 N.Y. 164;
Zeidler v. Board of Supervisors of Suffolk Co., 35 A.D.2d
54). The court need not agree with the agency as long as
there is factual support in the record for the agency’s deter-
mination. Matter of Phinn v. Kross, 8 A.D.2d 132).
Here, the record (over 7,000 pages) is replete with testimo-
nial, photographic and documentary evidence attesting to the
25a
special architectural, aesthetic, historical and cultural value in
the designated aspects of each landmarked theatre. Petition-
ers allege ‘‘The landmark designations were made pursuant to
a predetermined policy to landmark each and every legitimate
theatre in Midtown which had any potential for development,
without regard to the applicable standards under the Land-
marks Law.’’ While it is true the Theatre Advisory Council
desired to preserve all listed theatres, there is no probative
evidence that was the goal of amy agency named as a respon-
dent herein. To the contrary, the record shows each theatre
building was given individual consideration of its unique
features and history thought to merit protection. Not all the-
atres were found to permit protection and on some, only
interior or exterior features were found to be of such special
character or special historical or aesthetic interest or value as
to warrant protection. The rest were rejected. Notwithstand-
ing, the goals and recommendations of the Theatre Advisory
Counsel, petitioners’ blanket claims are unsupported.
Moreover, there is no support for petitioners’ claim that
respondents have exceeded their Statutory authority. The rec-
ord provides support for finding each building was desig-
nated on its own merits not em masse as claimed. If there
were evidence that respondents sought to control the theatre
industry as a whole, Clearly the agencies would have violated
their mandates.
In the second cause of action, petitioners allege various
violations by the BOE. Again, however, the record does not
Support the claims. As noted, the record again supports a
finding each building was considered separately on its own
interior and exterior features. Petitioners complain the build-
ings were simply listed alphabetically and considered as a
group. Obviously, the theatres were listed alphabetically to
avoid confusion and as an aid to a more efficient and logical
review.
The single roll call vote procedure by the BOE appears to
have been a matter of administrative discretion and conven-
ience. The BOE was entitled to vote on the designations as a
group providing there is no prejudice to petitioners. Petition-
ers have not shown any prejudice or violation of any law or
26a
rule concerning the voting methods at BOE. There is no
requirement that individual votes be taken on each matter
before the BOE. Petitioners have not produced any support
for the allegation that their rights were violated. Respondents
show by example how a single vote is a simple expedient in
the face of busy calendars.
The third cause of action relating to the absence of the
transcript is without merit. While the public hearings before
the LPC were mandated by law, there is no statutory require-
ment that testimony at the hearings be transcribed. The
stenographer’s notes were made in case a private party or
reviewing party or court required a transcript of the hearings.
Members of each commission or the BOE could have
requested transcripts but instead chose to consider and rely
on other evidence and reports made available and provided to
them. There is no statutory provision specifying exactly what
evidence must be considered by each agency except Land-
marks Law 25-303(4)(f} which provides only that the LPC
shall file a copy of its designating report with each agency
involved.
Petitioners’ interests and concerns were presented at every
stage of the proceedings by their chosen representatives. Peti-
tioners should not be heard to complain that the process took
as long as it did or that members of the commissions have
changed over time. Petitioners themselves were, in great part,
responsible for the length of the proceedings. The record
shows petitioners requested continuations and adjournments
so that they might have additional time to prepare reports or
present evidence. Further, there is nothing in any statute that
requires members of LPC, CPC, or BOE to remain the same
throughout the course of proceedings. If such were the same,
no agency could act effectively as membership tends to
change for personal and professional reasons. It is, however,
each individuals’ responsibility as a member of a commission
to educate and inform himself or herself on the details of the
business before them so they make informed decisions. Mem-
bers of each commission had numerous reports and other evi-
dence before them before they voted. Just because certain
members did not attend the public hearing is not enough to
EE
27a
invalidate the work of the commission provided there was a
quorum.
Petitioners challenge the interior designations in their
fourth cause of action as arbitrary, capricious, an abuse of
discretion and illegal. The Landmarks Law specifically autho-
rizes the LPC to designate interior architectural features as
landmarks. Petitioners argue the interior designations are
counterproductive to preservation and constitute an unrea-
sonable interference with theatre productions. Petitioners’
experts with eminent credentials in the field of theatre and
Stage design, express their opinions that the interior designa-
tions and regulations are incompatible with the requirements
of good and efficient theatre and Stage design. Respondents’
experts, equally well-qualified in their field, express their view
that interior landmarks and regulations are compatible with
good theatre and stage design. Respondents cite the theatre
production of ‘‘Cats’’, ‘‘Starlight Express’’ and ‘‘Phantom
of the Opera’’ as examples of how old theatres may be modi-
fied under the interior guidelines to accommodate the latest
advances in theatre/stage design requirements. Even if this
Court were to agree with petitioners’ experts, this Court may
not substitute its judgment for that of the reviewing agency
absent a finding of arbitrariness or Capriciousness or the
agency’s action was in violation of lawful procedures or
made in excess of jurisdiction. (Carroll v. Ortiz, 122 Misc. 2d
164 and Minerva v. Ward, 101 A.D.2d 754, aff'd, 63 N.Y.2d
739). Here, review of the record reveals a rational basis for
the respondents’ determination to landmark certain theatre
interiors. As with the exterior designations, the record reveals
each interior designation was considered individually on its
own merits.
Ihe Guidelines for the Treatment of Designated Broadway
Theatres Exteriors and Interiors adopted by LPC after a
number of public executive sessions was a valid exercise of its
regulatory power to assist in the preservation of landmarks.
The Guidelines were the result of years of study and discus-
sion involving various experts familiar with theatrical require-
ments. Theatre owners were involved. The Theatre Advisory
Council which also included theatre owners, recommended
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28a
the Guidelines and that the designations not be approved
until the Guidelines were in place. Certain petitioners testified
for the Guidelines which provide a simplified procedure and
time limits for processing applications to do certain kinds of
work. There is nothing arbitrary, abusive or illegal in the
Guidelines.
The the fifth cause of action regarding SEQRA is without
merit. The Environmental Conservation Law 8-0109(2)
(‘‘ECL’’) provides, in relevant part, ‘‘all agencies . . . shall
prepare ... an environmental impact statement on any
action they propose or approve which may have a significant
effect on the environment.’’
To argue as petitioners do, the designation of one or more
buildings as landmarks constitutes an ‘‘action’’ which may
have a significant effect on the environment, overlooks the
fact that landmark designations effectively act to stabilize the
environment in and about a building and its neighborhood.
By maintaining the existing structure, no change is effected.
The environment is unaffected.
Landmark designations are not ‘‘actions’’ within the pur-
view of ECL but enjoy exemption from the ECL definition
of ‘‘action’’. ECL 8-0105(5) provides ‘‘actions’’ do not
include: (III) maintenance or repair involving no substantial
changes in existing structure of facility.’’ Insofar as the
Landmarks Law seeks only to maintain the status quo of a
designated building through routine maintenance and repairs,
SEQRA has no application to the subject designations.
The sixth cause of action alleging the Landmarks Law is
unconstitutional for failure to exempt properties not making
a reasonable return is without merit. Petitioners challenge the
so-called hardship provision (Landmarks Law 25-309) which
permits demolition, alteration or reconstruction on the
ground of insufficient return. Petitioners argue the hardship
provision is inadequate to prevent a confiscation of a land-
mark owner’s property. Petitioners’ argument erroneously
presupposes a landmark designation is equivalent to a confis-
cation or ‘‘taking’’. Petitioners cite cases for the proposition
that land use regulations which prevent a reasonable return
or investment are confiscatory. Petitioners rely primarily
i laaaamauaaaaaenamamaeeanemaa aac
29a
upon Seawall Associates v. City of New York (138 Misc. 2d
96) wherein the trial court held enactment of Local Law 9 of
1987 was unconstitutional as a “‘taking’’ of property.
Although reversed on appeal to the Appellate Division (142
A.D.2d 72) the trial court was subsequently reinstated by the
Court of Appeals (74 N.Y.2d 92 (cert. denied)) in a decision
dated July 6, 1989. Local Law 9 involved a broad affirmative
social action program designed to ‘‘freeze’’ existing single
room occupancy rental units (‘‘SRO’’) to help remedy the
growing problem of homelessness. The law prohibited con-
version, alteration or demolition of SRO units. Owners were
required to rehabilitate units in their buildings and lease each
such unit at a controlled rent. Substantial penalties were pro-
vided for violations. An exemption provision allowed owners,
at a cost of $45,000 per unit, to convert or eliminate a unit.
The cost to ‘‘buy’’ an exemption could be decreased upon a
finding of hardship if ‘‘there is no reasonable possibility that
such owners can make a reasonable rate of return’’ which
was defined as a net annual return of 8-!/2% of the assessed
value of the property as an SRO. The Court of Appeals
found Local Law 9 unconstitutional as a per se physical
“‘taking’’ without compensation ‘because it interfere[s] so
drastically with the SRO property owners’ fundamental rights
to possess and to exclude. The law requires nothing less of
the owners than ‘to suffer the physical occupation of [their]
building[s] by third parties’ [citations omitted]”’ [74 N.Y.2d
92, 106]. The court also found even if there was no physical
“‘taking’’, Local Law 9 ‘‘would still be facially invalid as a
regulatory taking.’’ Citing Penn Central Transportation Co.
v. New York City, 438 U.S. 104, the Court of Appeals
Stated:
‘There is no ‘set formula’ for determining in all cases
when an adjustment of rights has reached the point
when ‘justice and fairness’ require that compensation be
paid. It is basic, however, that such a burdenshifting
regulation of the use of private property will, without
more, constitute a taking: (1) if it denies an owner eco-
30a
nomically viable use of his property, or (2) if it does not
substantially advance legitimate state interests.’’
Also relevant here, the Court of Appeals stated:
‘*The effect of Local Law No. 9 is unlike that of the
Landmarks Law in Penn Central, which denied the
owner of Grand Central neither the continued full use of
its property nor a reasonable return on its investment.”’
As a footnote the Court of Appeals stated:
‘‘Moreover, the [Supreme] Court in Penn Central
pointed out that, while the Landmarks Commission had
denied an application to build more than 50 stories
above the terminal, there was no showing that permis-
sion to build fewer would be denied. Additionally, the
Court noted that Penn Central had not been deprived of
all pre-existing air rights, since under the law these rights
were transferable (438 U.S. 104, 136-137).’’
The point here is, Seawall and Penn Central do not sup-
port petitioners’ argument that the Landmarks Law and the
hardship provision in particular are confiscatory in denying a
reasonable return to the owner. The Court of Appeals
expressly differentiated the effect of a use regulation such as
Local Law 9 versus a landmark designation. Whereas a regu-
lation affecting use of the property may result in an unlawful
‘‘taking’’, a landmark designation denies the owner ‘‘neither
the continued full use of its property nor a reasonable
return.’’
It was not the hardship provision or the rate that rendered
Local Law 9 invalid. In Seawall, the trial court found, inter
alia, Local Law 9
‘‘so onerous a burden on the property regulated and in
effect deprives the owner of a reasonable income or
other private use of his property thereby destroying its
economic value, a regulation of this type amounts to a
deprivation or frustration of property rights without due
process of law and is therefore invalid.’”’
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3la
Therefore, to argue as petitioners do that because the
8-'/2% hardship provision under Local Law 9 was unconsti-
tutional, the 6% hardship provision under the Landmarks
Law must also be unconstitutional, overlooks the legal
import of Seawall.
The seventh, eighth and ninth causes of action challenging
the Special Demolition Permit Requirement (‘‘SDP’’) in ZR
81-742 are without merit. The Zoning Resolution provides:
**81-742 Restrictions on Demolition of Theatres.
No demolition permit shall be issued by the Depart-
ment of Buildings for any theatre listed in this section as
a “‘listed theatre,’’ unless:
(a) It is an unsafe building and demolition is required
pursuant to the provisions of Section 26-235 to 26-243
(Title 26, Chapter 1, Article 8. Unsafe Buildings and
Property); or
(b) It has been designated a landmark by the Land-
mark Preservation Commission and a notice to proceed
has been issued to the owner pursuant to Section 25-309
of the Administrative Code permitting demolition that
contemplates removal of the theatre from theatre use; or
(c) The City Planning Commission, by special permit
after public notice and hearing and subject to Board of
Estimate action permits its demolition upon making the
following findings:
(1) That demolition of the theatre Structure will not
unduly diminish the character of the Theatre District as
a cultural, entertainment and theatrica] showcase, taking
into consideration any or all of the following factors:
(i) Current physical characteristics of the theatre
that affect its suitability as a legitimate the-
atre, including but not limited to seating
capacity, configuration and location,
(ii) History of its use as a legitimate theatre pre-
senting legitimate attractions to the general
public,
_
32a
(iii) Likelihood of its future use for legitimate
theatre production under reasonable terms
and conditions generally prevailing in the the-
atre industry, and
(iv) Applicant’s pians, if any, for replacement of
the theatre structure with a development con-
taining replacement uses supportive of the
character of the theatre subdistrict, and
(2) That there exists a legal commitment binding upon
all parties in interest of the zoning lot containing the
theatre that any development or enlargement on a zon-
ing lot containing a portion or all of the former site of
the listed theatre shall reserve floor space at least equiva-
lent in amvuunt to the total floor area of the theatre
devoted exclusively to uses described in Section 81725
(entertainment related uses) and meeting the require-
ments of Section 81-724 (requirements for entertain-
ment-related uses) for the lift of such development or
enlargement. If the area of the zoning lot containing the
theatre is less than 20,000 square feet and the Commis-
sion finds that the allocation of floor space at least
equivalent in amount to the total floor area of the the-
atre to uses described in Section 81-725 (entertainment-
related uses) is impractical or unreasonable, the
Commission may authorize a reduction in the amount of
area allocated to such uses. Any development or enlarge-
ment on a zoning lot containing a portion or all of the
former site of a listed theatre musts, however, meet the
requirements of Section 81724 (requirements for
entertainment-related uses), whether or not the zoning
lot is located within the area described in that Section.
The theatre to which the provisions of this section
apply are predominantly free standing theatres with full
stage and wings and are identified as listed theatres in
Table 1 below. (See Exhibit A).
In the case of an existing legitimate theatre for whose
construction bonus floor area was granted pursuant to
M
33a
| regulations in effect prior to the effective date of this
amendment; no provision of this amendment shall be
construed as changing any previously existing responsi-
bility of the owner or lessee of such theatre for continu-
ance of its use as a legitimate theatre.”
Petitioners assert that SPD is an unauthorized use of police
power and not permitted under city and state law, and should
be invalidated because it is discriminatory in nature and fails
to exempt properties not yielding a fair return. Petitioners
argue that General City Law 20(25), the source from which
the city derives its zoning powers, does not authorize the
CPC to enact the SDP because it is a ‘‘site specific’’ zoning
regulation, ‘‘isolating specific buildings in a district for dif-
ferent treatment from other similarly situated buildings.’
Petitioners state there ir no authority to single out 44 parcels
by name and subject them to special zoning requirements.
Petitioners concede the preservation of Broadway theatres in
midtown ‘‘constitutes a viable public goal’’ but suggest ‘‘such
goal cannot be achieved by fiat’’ but by other means such as
by equal restrictions on all Owners of property in the Theatre
Subdistrict promoting theatre use on their property, by enact-
ing voluntary incentive programs or by purchase from the
Owners at fair market value. Petitioners conclude ‘‘whether
characterized as reverse spot zoning, discriminatory zoning or
frustration of property rights, the City’s SDP js impermissi-
ble and should be annulled.’’
In support of these arguments petitioners rely primarily
upon three cases—Vernon Park Realty, Inc. v. City of
Mount Vernon, 307 N.Y. 493; Westwood Forest Estates v.
Village of South Nyack, 23 N.Y.2d 424 and Fred F. French
Investing Co. v. City of New York, 39 N.Y.2d 587, cert.
denied, 429 U.S. 990. Upon review of these cases, however,
the Court finds they are inapposite and thus not controlling
on any of the three arguments against the SDP.
Vernon Park involved a parcel of land adjacent to a rail-
road station in the middle of a heavily developed business
district. The property had always been used for parking even
though the property itself was residentially zoned. Both the
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34a
business and residertial districts were pursuant to 1927 zon-
ing ordinances. Parking was permitted as a valid non-
conforming use. In 1932 a variance was granted permitting
installation of a gasoline station. In 1951, plaintiff took title
and was denied a variance for a retail shopping center under
the 1927 zoning ordinance (residential). While an action to
annul the 1927 zoning ordinance was pending, the City of
Mount Vernon amended the zoning ordinance to prohibit the
use of plaintiff’s property for any purpose other than for a
service station and parking. Plaintiff proved the property had
no value for residential use and that the amendment effec-
tively destroyed the greater part of the value of the property
for which it was most readily adapted—a business use. In
Vernon Park, the Court of Appeals found the zoning ordi-
nance invalid because it was ‘‘so unreasonable and arbitrary
as to constitute an invasion of property rights contrary to
constitutional due process. .. .’’
Westwood involved a zoning ordinance amendment barring
new construction of multiple dwellings throughout the Village
of South Nyack in order to alleviate an existing burden on
the Village’s sewage disposal plant. The Court of Appeals
found the amendment invalid because it was not properly
related to zoning purposes and restricted the owner’s prop-
erty to a use fo which it was not adaptable. The Court also
found the amendment was not adopted in furtherance of a
comprehensive plan.
Fred F. French Investing involved an amendment to the
New York City Zoning Resolution purporting to create a
‘*special park district’’, reasoned two private parks in a mid-
town residential complex then zoned for residential and office
building use, exclusively for use as parks open to the public
and granted the owner certain development rights which
could be transferred to some other unspecified parcel. The
Court of Appeals found the amendment unconstitutional] as
an unreasonable exercise of the police power to regulate pri-
vate property use without due process of law because it
deprived the owner of all property rights except bare title and
certain other dubious rights.
35a
In each of these three cases, the invalidated zoning mea-
sures were found to have denied the owners the full or value
of their properties, that the Proposed measures were not
properly related to zoning purposes or not adopted in fur-
therance of a comprehensive zoning plan. Another case cited
by petitioners is De Sena v. Gulde, 24 A.D.2d 165, wherein
an amendment to a village zoning ordinance placed plaintiff’s
and an adjoining property into a light manufacturing district
pursuant to a preexisting master plan. Because of boycotting,
picketing and threats of economic damage by certain mem-
bers of the community who sought to make race an issue out
of the zoning amendment, the Board of Trustees adopted
another amendment placing the same area into a residential
district. The subsequent amendment was declared illegal
because the Board failed to follow its own master plan or its
conviction as to the most appropriate use of the land.
Here, the CPC has in place a comprehensive plan for the
theatre district first created in 1967. The plan was enacted in
three phases and adopted by the BOE on February 5, 1987,
October 29, 1987 and April 28, 1988. Phase | applied to cer-
tain zoning lots and regulates lighting, signs and lowscale
street walls with building set backs. (ZR 88-723, 732 and 8]-
75). These provisions were designed to preserve the scale and
low density in the core area of Broadway consistent with pre-
serving the character of the area as an entertainment related
area. (See ZR 81-00(h)). In order to encourage preservation
of existing theatres, Phase I] discontinued the bonuses pro-
vided earlier to attract construction of new theatres. To
ensure continuity in the character of the area, new develop-
ments were required to reserve a certain floor area for enter-
tainment related use. A new development might not have to
reserve floor area for entertainment uses if the new develop-
ment was in a merged zoning lot with a theatre. (See ZR 8]-
722, 721 and 725).
The SDP (ZR 81-742) was included in ZR 81-74, which had
been enacted in 1982 then extended and modified and later
made permanent. An environmental review by the City was
conducted as part of the adoption of these provisions. The
review resulted in the issuance of a Certificate of No Effect
36a
or negative declaration, dated April 20, 1987, as revised Sep-
tember 2, 1987. A public hearing (July 8, 1987) before the
CPC was held after Community Board No. 5 approved the
provision on June 11, 1986. A CPC report (September 2,
1987) recommended these provisions be made permanent. On
October 29, 1987 the BOE adopted them.
All of the provisions in ZR 81-72 to 81-74 were made per-
manent under Phase II. These provisions, originally adopted
in 1982, include those which are beneficial to theatre owners
such as a bonus for rehabilitation of listed theatres (ZR
81745), the allowance for relocation of bulk across zoning
district lines (ZR 81-746), the transfer of interior-only land-
mark TDRs (ZR 81-747(a)) and the transfer of TDRs through
a common chain of ownership (ZR 81-747(b)). Some theatre
owners have already benefited from some of these provisions.
They only challenge the restriction on demolition.
The SDP applies only to listed theatres not designated a
landmark. Respondents point out as a practical matter, there
are only three theatres, the Broadway, the Nederlander and
the Ritz, that are subject to the special demolition permit
procedure and because the Broadway and the Ritz have
already sold their TDRs, the SDP is not much of a restriction
on them. The Nederlander remains as the only theatre
restricted by the SDP. Petitioners do not deny respondents’
analysis narrowing the application of the SDP to three the-
atres and ultimately to the Nederlander. Since its enactment
in 1982, no theatre owner has ever applied for a special dem-
olition permit and no applications are pending consistent with
petitioners’ representation they have no present intent to
demolish any of their theatres.
The record also shows special permits for demolition are
required in other special districts and each requires satisfac-
tion of particular criteria.
Respondents cite Asian Americans for Equality v. Koch,
(72 N.Y.2d 121) where, in upholding the Special Manhattan
Bridge District, the Court of Appeals stated, among other
things, special district zoning ‘‘can be used as an incentive to
further growth and development of the community rather
than as a restraint’’ and ‘‘is one of several imaginative legis-
37a
lative schemes intended to encourage, or even coerce, private
development into making the city a more pleasant and effi-
cient place to live and work.’’ The Court noted that by use
of special district incentive plans, the city has ‘‘encouraged
the preservation and development of the Broadway Theatre
District,’’ among others.
Where legislation is challenged the Court must decide
“‘only whether the means chosen are constitutional and
related to the <vil sought to be abolished’’ and not ‘‘whether
the legislature has chosen the best remedy. . . .”’ (Staten
Island Loaders v. Waterfront Commission, 117 F.Supp. 308,
aff'd 347 U.S. 439). If legislation enacted pursuant to a
State’s police power bears a rational relationship to a legiti-
mate government interest, it will be upheld. (United States v.
Carolen Products Co., 304 U.S. 144: Grossman v.
Baumgartner, 17 N.Y.2d 345).
In Kravetz v. Plenge, 84 A.D.2d 422, the Appellate Divi-
sion, Fourth Department, stated:
‘Spot zoning is the singling out of a small parcel of
land for a use classification totally different from that
of the surrounding area, for the benefit of the owner of
the property and to the detriment of the other owners
[citations omitted]. Where the enacting authority acts in
accordance with a comprehensive plan it will not be con-
demned as spot zoning, even though it singles out and
affects but one lot or creates a small area in the center
of a larger zone devoted to a different use [citations
Omitted].’’ (At 428).
In Penn Central, supra, the U.S. Supreme Court stated:
“It is time, as appellants emphasize, that both historic
district legislation and zoning laws regulate all properties
within given physical communities whereas landmark
laws apply only to selected parcels. But, contrary to
appellant's suggestions, landmark laws are not like dis-
criminatory, or ‘reverse spot’ zoning: that is, a land-use
decision which arbitrarily singles out a particular parcel
for different, less favorable treatment other than the
38a
neighboring ones. [citation omitted]. In contrast to dis-
criminatory zoning, which is the anithesis of land use
control as part of some comprehensive plan, the New
York City law embodies a comprehensive plan to pre-
serve structures of historic or aesthetic interest wherever
they might be found in the City. . . .’’ (At 132)
There is no spot zoning, reverse spot zoning or discrimina-
tory zoning here. There is no ‘‘arbitrary singling out of a
particular parcel for different less favorable treatment than
the neighboring ones.’’ GCL 20(24) provides ‘‘such regula-
tions shall be uniform for each class of buildings throughout
any district, but the regulations in one or more districts may
differ from those in other districts.’’
Petitioners’ reply memorandum correctly recognizes that
the cases cited by respondents involved and upheld zoning
restrictions imposed on classes of structures treating similarly
situated parcels in a uniform fashion. The record here shows
the listed theatres share a sufficiently common heritage,
architecturally, historically, culturally and aesthetically as to
be fairly viewed as a class of buildings in the Special Theatre
District.
There is a limited scope of review applicable to municipal
zoning ordinances (See Kurzius, Inc. v. Upper Brookville, 51
N.Y.2d 338; Town of Huntington v. Park Shore Country
Day Camp, 47 N.Y.2d 61) which are given a strong presump-
tion of constitutionality. Moreover, there is a heavy burden
on the challenger to rebut the presumption by demonstrating
unconstitutionality beyond a reasonable doubt. (Asian Ameri-
can v. Koch, supra).
There can be no question but that the City has a compre-
hensive plan and that preservation of the character of the
Special Theatre District is an appropriate planning objective.
Economic considerations and goals are within the bounds of
legitimate government interests. (See Matter of Wolfsohn v.
Burden, 211 N.Y. 288 and Walkbroadway Realty Inc. v. New
York Board of Standards and Appeals, Sup. Ct. N.Y. Co.,
Index #25071/82, July 3, 1985). The City is legislatively
endowed with the power ‘‘to regulate and limit the height,
re
39a
bulk and location of buildings hereafter erected”? (GCL
20(24)) and ‘‘to regulate and restrict the location of trades
and industries and the location of buildings, designed for
specified uses, and for said purpose to divide the City into
districts and to prescribe for each such district the trades and
industries that shall be excluded or subjected to special regu-
lation and the uses for which buildings may not be erected or
altered’’ (GCL 20(25)).
Commendably, petitioners have no present intent to demol-
ish any of their theatres and they agree preservation is a via-
ble public goal. The record reveals, however, that petitioners
concerns are all related to the economics of their investments.
Indeed, petitioners suggest other means by which they think
the City might achieve its goals with less of a burden on
them. While property owners cannot be faulted for wanting
less regulation it is not this Court’s prerogative to fulfill
those wishes absent a demonstration of a violation of rights.
No such violation has been found on this record. The SDP is
only one element of the zoning resolution amendments appli-
cable to the Special Theatre District. The Court finds, as it
must, the SDP promotes and conserves the most desirable use
for land in the Special Theatre District in accordance with
City’s well-considered, comprehensive, master plan. There-
fore, the SDP is not an unauthorized use of the police power
and is permitted under City and State law and is not discrimi-
natory zoning.
The argument the SDP fails to include a hardship provi-
sion to exempt property not yielding a fair return is of no
avail. Pursuant to ZR 72-01(B), the Board of Standards and
Appeals (‘“‘BSA”’) has the power to “*hear, decide and deter-
mine in a specific case of practical difficulties or unnecessary
hardship, whether to vary the application of the provisions of
this resolution’. A hardship provision need not be spelled
out in each chapter of the zoning resolution as the BSA has
the authority to grant a variance from the Special Demolition
Permit requirements under ZR 72-2]. In addition, there is
evidence in the record that petitioners requested there be only
one hardship hearing at LPC. Therefore, petitioners may
apply for hardship relief from the SDP at either the LPC or
40a
the BSA notwithstanding the absence of such right in ZR 81-
742.
The tenth cause of action is without merit. On the issue of
a ‘‘taking’’ without just compensation, Penn Central and
Seawall are controlling authority. In Penn Central, Justice
Brennan stated:
‘‘The question presented is whether a city may, as part
of a comprehensive program to preserve historic land-
marks and historic districts, place restrictions on the
development of individual landmarks—in addition to
those imposed by applicable zoning ordinances—without
effecting a ‘taking’ requiring the payment of ‘just com-
» @O
pensation.’.
The question was answered in the affirmative. The grant of
landmark status does not effect a ‘‘taking.’’ The designations
of petitioners’ theatre contemplate a continuity of use as the-
atres. Petitioners are nevertheless free to change the uses to
which their buildings may be put. The Landmarks Law does
not concern itself with use so long as the use will not
adversely affect the protected architectural features.
Petitioners have not distinguished the relevant facts in this
case from those in Penn Central. Instead, petitioners argue
respondents’ citation to Penn Central is unnecessary because
petitioners do not question the City’s police power to pre-
serve buildings through landmarking procedures. Further,
petitioners state the Landmarks Law should not be invali-
dated simply because it inhibits development or improvement
of private property nor that it strips all value from petition-
ers’ property. What petitioners contend is that there must be
a ‘‘causal relationship’’ between the Landmark Law and the
police power goal. Petitioners maintain this ‘‘causal relation-
ship’’ requirement is mandated by GML 96-A and Nollan v.
California Coastal Commission, 197 S. Ct. 3141. Petitioners
conclude their argument by alleging ‘‘respondents cannot sat-
isfy the strict causal relationship test required in
Nollan. . .”’.
GMI 96-A requires that measures in ‘‘the exercise of
police power, shall be reasonable and appropriate to the pur-
4la
pose, or if constituting a “‘taking’’ of private property shall
provide for due compensation, which may include the limita-
tion or remission of taxes’. In Nollan, the U.S. Supreme
Court stated:
‘““We have long recognized that land use regulation
does not effect a taking if it ‘substantially advance{s]
legitimate state interests’ and does not ‘den[y] an owner
economically viable use of his land,’ Agins v. Tiburon,
447 U.S. 255, 260, 100 S. Ct. 2138, 2141, 65 L. Ed. 2d
106 (1980). See also Penn Central Transportation Co. v.
New York City, 438 U.S. 104, 127, 98 S. Ct. 2646,
2660, 57 L. Ed. 2d 63] (1978) (‘‘A use restriction may
constitute a ‘taking’ if not reasonably necessary to the
effectuation of a substantial government purpose. Our
cases have not elaborated on the standards for determin-
ing what type of connection between the regulation and
the state interest satisfies the requirement that the
former ‘substantially advance’ the latter.’’ (/d. at 3147)
Continuing, the Nollan court Stated that ‘‘a broad range of
governmental purposes and regulations satisfies these require-
ments.’ One such example was Penn Central wherein the
Court did a thorough analysis of the Landmarks Law in New
York and rejected a claim of “‘taking’’. The Court found the
regulation substantially advanced a legitimate state interest of
preserving Grand Central Terminal. Therefore, however the
‘test’ in Nollan may be defined, Penn Central held that the
New York Landmarks Law met the test. A fortiori, the ‘‘rea-
sonable and appropriate’ test in GML 96-A is also met.
This Court finds that preservation of certain theatres and
the industry of theatre production in the Special Theatre Dis-
trict in New York City is a legitimate government interest
which is substantially advanced by the Landmarks Law. The
theatre industry in New York is an integral part of the Amer-
ican cultural fabric and the economy of New York City and
State. Reference is here made to the declaration of public
policy set forth in Landmarks Law 25-301(b). It clearly states
that the protection and perpetuation of improvements of spe-
cial character or special historical Or aesthetic interest or
ae
42a
value is a public necessity required in the interest of the
health, prosperity, safety and welfare of the people. The pur-
pose of the policy is expressly set forth and includes fostering
civic pride in the beauty and noble accomplishments of the
past, the protection and enhancement of the City’s attrac-
tions to tourists and visitors and the support and simulus to
business and industry thereby provided, to strengthen the
economy of the City and to promote the use of historic dis-
trict landmarks and interior landmarks for the education,
pleasure and welfare of the people.
The eleventh cause of action alleges damages of not less
than $200,000,000. Alleging it does not make it so. No evi-
dentiary proof is offered to show a genuine issue of fact. No
factual allegations are found in the pleadings to support this
cause of action. It is not clear to the Court whether this
claim of damage is asserted in relation to the ‘‘taking’’ argu-
ment or as a separate claim for diminished value of air
rights. No probative evidence is offered to show diminution
of such rights or the value thereof. Conclusory arguments
have no merit and are insufficient to defeat respondents’
cross-motion for summary judgment.
Contrary to petitioners’ arguments respondents have pre-
sented an affidavit directly refuting petitioners’ allegations
with a factual analysis of air rights in connection with peti-
tioners’ properties. The analysis lists the permitted FAR, the
allowable bulk, approximate existing bulk and unused resid-
ual bulk for each of twenty theatres owned by petitioners.
The factual statements in the affidavit belie petitioners’ con-
clusions. No issue of fact is found to defeat the cross-motion
relative to the eleventh cause of action.
Accordingly, respondents’ cross-motion for dismissal is
granted.
Settle Order and Judgment in accordance with the fore-
going decision.
Dated: December 5, 1989
/s/ 1.V. Santaella
35.4..
43a
New York Court of Appeals
Dismissal of Appeal
Sept. 10, 199]
(Reported at 78 N.Y.2d 1006, 580 N.E.2d 1059, 575
N.Y.S.2d 456)
APPEALS ON CONSTITUTIONAL GROUNDS
Decided September 10, 199]
——>-—_—
Shubert Org., Inc., Matter of,
We
Landmarks Preservation Commn. of City of N.Y.
- . « (Ist Dept.: 166 A.D.2d 115) . . . appeal dismissed
—_
New York Court of Appeals
Denial of Leave to Appeal
December 18, 199]
(Reported at ___—s N.Y.2d ; i >)
N.Y.3.2d _ _)
oe
MOTIONS
Decided December 18, 199]
1200. MATTER OF THE SHUBERT ORGANIZATION, INC.,
ap. (Landmarks Preservation Commission of the City of New
York, res)\—Motion for leave to appea! denied with one hun-
dred dollars costs and necessary reproduction expenses. Judge
Kaye took no part.
44a
NEW YORK CITY LANDMARKS LAW
New York City Administrative Code, Title 25, Chapter 3
Chapter 3
LANDMARKS PRESERVATION AND HISTORIC DIS-
TRICTS
§ 25-301 Purpose and declaration of public policy.
§ 25-302 Definitions.
§ 25-303 Establishment of landmarks, landmark sites,
interior landmarks, scenic landmarks and his-
toric districts.
§ 25-304 Scope of commission’s powers.
§ 25-305 Regulation of construction, reconstruction, alter-
nations and demolition.
§ 25-306 Determination of request for certificate of no
effect on protected architectural features.
§ 25-307 Factors governing issuance of certificate of
appropriateness.
§ 25-308 Procedure for determination of request for cer-
tificate of appropriateness.
§ 25-309 Request for certificate of appropriateness autho-
rizing demolition, alterations or reconstruction
on ground of insufficient return.
§ 25-310 Regulation of minor work.
§ 25-311 Maintenance and repair of improvements.
§ 25-312 Remedying of dangerous conditions.
§ 25-313 Public hearings; conferences.
§ 25-314 Extension of time for action by commission.
§ 25-315 Determinations of the commission; notice
thereof.
§ 25-316 Transmission of certificates and applications to
proper city agency.
§ 25-317 Penalties for violations; enforcement.
§ 25-318 Reports by commission on plans for proposed
projects.
§ 25-319 Regulations.
§ 25-320 Investigations and reports.
§ 25-321 Applicability.
45a
§ 25-301 Purpose and declaration of public
policy. a. The council finds that many improvements, as
herein defined, and landscape features, as herein defined,
having a special character or a special historical or aesthetic
interest or value and many improvements representing the
finest architectural products of distinct periods in the history
of the city, have been uprooted, notwithstanding the feasibil-
ity of preserving and continuing the use of such improve-
ments and landscape features, and without adequate
consideration of the irreplaceable loss to the people of the
city of the aesthetic, cultural and historic values represented
by such improvements and landscape features. In addition,
distinct areas may be Similarly uprooted or may have their
distinctiveness destroyed, although the preservation thereof
may be both feasible and desirable. It is the sense of the
council that the Standing of this city as a world wide tourist
center and world capital of business, culture and government
cannot be maintained or enhanced by disregarding the histor-
ical and architectural heritage of the city and by countenanc-
ing the destruction of such Cultural assets.
b. It is hereby declared as a matter of public policy that
the protection, enhancement, perpetuation and use of
improvements and landscape features of special character or
special historical or aesthetic interest or value is a public
necessity and is required in the interest of health, prosperity,
safety and welfare of the people. The purpose of this chapter
is to (a) effect and accomplish the protection, enhancement
and perpetuation of such improvements and landscape fea-
tures and of districts which represent or reflect elements of
the city’s cultural, social, economic, political and architec-
tural history; (b) safeguard the city’s historic, aesthetic and
cultural heritage, as embodied and reflected in such improve-
ments, landscape features and districts; (c) stabilize and
improve property values in such districts; (d) foster civic
pride in the beauty and noble accomplishments of the past;
(e) protect and enhance the City’s attractions and industry
thereby provided; (f) Strengthen the economy of the city; and
(g) promote the use of historic districts, landmarks, interior
46a
landmarks and scenic landmarks for the education, pleasure
and welfare of the people of the city.
§ 25-302 Definitions. As used in this chapter, the fol-
lowing terms shall mean and include:
a. ‘‘Alteration.’’ Any of the acts defined as an altera-
tion by the building code of the city.
b. ‘‘Appropriate protective interest.’’ Any right or inter-
est in or title to an improvement parcel or any part thereof,
including, but not limited to, fee title and scenic or other
easements, the acquisition of which by the city is determined
by the commission to be necessary and appropriate for the
effectuation of the purpose of this chapter.
c. ‘‘Capable of earning a reasonable return.’’ Having
the capacity, under reasonably efficient and prudent manage-
ment, of earning a reasonable return. For the purposes of
this chapter, the net annua! return, as defined in subpara-
graph (a) of paragraph three of subdivision v of this section,
yielded by an improvement parcel during the test year, as
defined in subparagraph (b) of such paragraph, shall be pre-
sumed to be the earning capacity of such improvement par-
cel, in the absence of substantial grounds for a contrary
determination by the commission.
d. ‘‘City-aided project.’’ Any physical betterment of
real property, which:
(1) may not be constructed or effected without the
approval of one or more officers or agencies of the city; and
(2) upon completion, will be owned in whole or in part
by any person other than the city; and
(3) is planned to be constructed or effected, in whole or
in part, with any form of aid furnished by the city (other
than under this chapter), including, but not limited to, any
loan, grant, subsidy or the mode of financial assistance, exer-
cise of the city’s powers of eminent domain, contribution of
47a
city property, or the granting of tax exemption or tax abate-
ment; and
(4) will involve the construction, reconstruction, altera-
tion or demolition of any improvement in a historic district
or of a landmark.
e. ‘“‘Commission.’”’ The landmarks preservation commis-
sion.
“Bay.” Any day other than a Saturday, Sunday or
legal holiday; provided, however, that for the purposes of
Subdivision d of section 25-317 of this chapter, the term
“‘day’’ shall mean every day in the week.
g. “Exterior architectural feature.’’ The architectural
Style, design, genera] arrangement and components of all of
the outer surfaces of an improvement, as distinguished from
the interior surfaces enclosed by said exterior surfaces,
including, but not limited to, the kind, color and texture of
the building material and the type and style of all windows,
doors, lights, signs and other fixtures appurtenant to such
improvement.
h. ‘‘Historic district.’’ Any area which:
(1) contains improvements which:
(a) have a special character Or special historical or aes-
thetic interest or value; and
(b) represent one or more periods or styles of architecture
typical of one or more eras in the history of the city; and
(c) cause such area, by reason of such factors, to consti-
tute a distinct section of the city; and
(2) has been designated as a historic district pursuant to
the provisions of this chapter.
i. ‘Improvement.’ Any building, structure, place, work
of art or other object constituting a physical betterment of
real property, or any part of such betterment.
48a
j. ‘‘Improvement parcel.’’ The unit of real property
which (1) includes a physical betterment constituting an
improvement and the land embracing the site thereof, and (2)
is treated as a single entity for the purpose of levying real
estate taxes, provided however, that the term ‘‘improvement
parcel’’ shall also include any unimproved area of land which
is treated as a single entity for such tax purposes.
k. ‘‘Interior.’’ The visible surfaces of the interior of an
improvement.
]. ‘‘Interior architectural feature.’’ The architectural
style, design, general arrangement and components of an
interior, including, but not limited to, the kind, color and
texture of the building material and the type and style of all
windows, doors, lights, signs and other fixtures appurtenant
to such interior.
m. ‘‘Interior landmark.’’ An interior, or part thereof,
any part of which is thirty years old or older, and which is
customarily open or accessible to the public, or to which the
public is customarily invited, and which has a special histori-
cal or aesthetic interest or value as part of the development,
heritage or cultural characteristics of the city, state or nation,
and which has been designated as an interior landmark pur-
suant to the provisions of this chapter.
n. ‘‘Landmark.’’ Any improvement, any part of which
is thirty years old or older, which has a special character or
special historical or aesthetic interest or value as part of the
development, heritage or cultural characteristics of the city,
state or nation, and which has been designated as a landmark
pursuant to the provisions of this chapter.
o. ‘‘Landmark site.’’ An improvement parcel or part
thereof on which is situated a landmark and any abutting
improvement parcel or part thereof used as and constituting
part of the premises on which the landmark is situated, and
which has been designated as a landmark site pursuant to the
provisions of this chapter.
49a
Pp. ‘“‘Landscape feature.’’ Any grade, body of water,
stream, rock, plant, shrub, tree, path, walkway, road, plaza,
fountain, sculpture or other form of natural or artificial]
landscaping.
q. ‘‘Minor work.” Any change in, addition to or
removal from the parts, elements or materials compromising
an improvement, including, but not limited to, the exterior
architectural features or interior architectural features thereof
and, subject to and as prescribed by regulations of the com-
mission if and when promulgated pursuant to section 25-319
of this chapter, the surfacing, resurfacing, painting, renovat-
ing, restoring or rehabilitating of the exterior architectural
features or interior architectural features or the treating of
the same in any manner that materially alters their appear-
ance, where such change, addition or removal does not con-
stitute ordinary repairs and maintenance and is of such
nature that it may be lawfully effected without a permit from
the department of buildings.
tr. “‘Ordinary repairs and maintenance.’’ Any:
(1) work done on any improvement; or
(2) replacement of any part of an improvement;
for which a permit issued by the department of buildings is
not required by law, where the Purpose and effect of such
work or replacement is to correct any deterioration or decay
of or damage to such improvement or any part thereof and
to restore same, as nearly as may be practicable, to its condi-
tion prior to the occurrence of such deterioration, decay or
damage.
Ss. “‘Owner.’’ Any person or persons having such right
to, title to or interest in any improvement so as to be legally
entitled, upon obtaining the required permits and approvals
from the city agencies having jurisdiction over building con-
Struction, to perform with respect to such property any dem-
olition, construction, reconstruction, alteration or other work
as to which such person seeks the authorization or approval
of the commission pursuant to section 25-309 of this chapter.
$0a
t. ‘‘Person in charge.’’ The person or persons possessed
of the freehold of an improvement or improvement parcel or
a lesser estate therein, a mortgagee or vendee in possession,
assignee of rents, receiver, executor, trustee, lessee, agent or
any other person directly or indirectly in control of an
improvement or improvement parcel.
u. ‘‘*Protected architectural feature.’’ Any exterior archi-
tectural feature of a landmark or any interior architectural
feature of an interior landmark.
v. ‘*Reasonable return.’’ (1) A net annual return of six
per centum of the valuation of an improvement parcel.
(2) Such valuation shall be the current assessed valuation
established by the city, which is in effect at the time of the
filing of the requests for a certificate of appropriateness; pro-
vided that:
(a) The commission may make a determination ihat the
valuation of the improvement parcel is an amount from such
assessed valuation where there has been a reduction in the
assessed valuation for the year next preceding the effective
date of the current assessed valuation in effect at the time of
the filing of such request; and
(b) The commission may make a determination that the
value of the improvement parcel is an amount different from
the assessed valuation where there has been a bona fide sale
of such parcel within the period between March fifteenth,
nineteen hundred fifty-eight, and the time of the filing of
such request, as a result of a transaction at arm’s length, on
normal financing terms, at a readily ascertainable price, and
unaffected by special circumstances such as, but not limited
to, a forced sale, exchange of property, package deal, wash
sale or sale to a cooperative. In determining whether a sale
was on normal financing terms, the commission shall give
due consideration to the following factors:
Sla
(1) The ratio of the cash payment received by the seller to
(a) the sales price of the improved parcel and (b) the annual
gross income from such parcel;
(2) The total amount of the Outstanding mortgages which
are liens against the improvement parcel (including purchase
money mortgages) as compared with the assessed valuation of
such parcel;
(3) The ratio of the sales price to the annual gross income
of the improvement parcel, with consideration given, where
the improvement is subject to residential rent control, to the
total amount of rent adjustments previously granted, exclu-
Sive of rent adjustments because of changes in dwelling
space, services, furniture, furnishings, or equipment, major
capital improvements, or substantial rehabilitation;
(4) The presence of deferred amortization in purchase
money mortgages, or the assignment of such mortgages at a
discount;
(5) Any other facts and circumstances Surrounding such
sale which, in the judgment of the commission, may have a
bearing upon the question of financing.
(3) For the Purposes of this subdivision v:
(a) Net annual return shall be the amount by which the
earned income yielded by the improvement parcel during a
test year exceeds the operating expenses of such parcel during
such year, excluding mortgage interest and amortization, and
excluding allowances for Obsolescence and reserves, but
including an allowance for depreciation of two per centum of
the assessed value of the improvement, exclusive of the land,
or the amount shown for depreciation of the improvement in
the latest required federal income tax return, whichever js
lower; provided, however, that no allowance for depreciation
of the improvement shall be included where the ‘mprovement
has been fully depreciated for federal income tax purposes or
on the books of the Owner; and
52a
(b) Test year shall be (1) the most recent full calendar
year, or (2) the owner’s most recent fiscal year, or (3) any
twelve consecutive months ending not more than ninety days
prior to the filing (a) of the request for a certificate, or (b) of
an application for a renewal of tax benefits pursuant to the
provisions of section 25-309 of this chapter, as the case may
be.
w. ‘‘Scenic landmark.’’ Any landscape feature or aggre-
gate of landscape features, any part of which is thirty years
old or older, which has or have a special character or special
historical or aesthetic interest or value as part of the develop-
ment, heritage or cultural characteristics of the city, state or
nation and which has been designated a scenic landmark pur-
suant to the provisions of this chapter.
§ 25-203 Establishment of landmarks, landmark sites,
interior landmarks, scenic landmarks and _ historic
districts. a. For the purpose of effecting and furthering the
protection, preservation, enhancement, perpetuation and use
of landmarks, interior landmarks, scenic landmarks and his-
toric districts, the commission shall have power, after a pub-
lic hearing:
(1) to designate and, as herein provided in subdivision j,
in order to effectuate the purposes of this chapter, to make
supplemental designations as additions to, a list of landmarks
which are identified by a description setting forth the general
characteristics and location thereof;
(2) to designate and, in order to effectuate the purposes
of this chapter, to make supplemental designations as addi-
tions to, a list of interior landmarks, not including interiors
utilized as places of religious worship, which are identified by
a description setting forth the general characteristics and
location thereof;
(3) to designate and, in order to effectuate the purposes
of this chapter, to make supplemental designations as addi-
tions to, a list of scenic landmarks, located on property
owned by the city, which are identified by a description set-
S$3a
ting forth the general characteristics and location thereof:
and
(4) to designate historic districts and the location and
boundaries thereof, and, in order to effectuate the purposes
of this chapter, to designate changes in such locations and
boundaries and designate additional] historic districts and the
location and boundaries thereof.
b. It shall be the duty of the commission, after a public
hearing, to designate a landmark site for each landmark and
to designate the location and boundaries of such Site.
¢. The commission shall have power, after a public hear-
ing, to amend any designation made pursuant to the provi-
sions of subdivisions a and b of this section.
d. The commission may, after a public hearing, whether
at the time it designates a scenic landmark or at any time
thereafter, specify the nature of any construction, reconstruc-
tion, alteration or demolition of any landscape feature which
may be performed on Such scenic landmark without prior
issuance of a report pursuant to subdivision c of section 25-
318. The commission shall have the power, after a public
hearing, to amend any specification made pursuant to the
provisions of this subdivision. ;
e. Subject to the provisions of subdivision g and h of this
section, any designation or amendment of a designation made
by the commission pursuant to the provisions of subdivisions
a, b and c of this section Shall be in full force and effect
from and after the date of the adoption thereof by the com-
mission.
f. Within five days after making any such designation or
amendment thereof, the commission shall file a copy of same
with the secretary of the board of estimate and with the
department of buildings, the city planning commission, the
board of standards and appeals, the fire department and the
department of health.
54a
g. (1) The secretary of the board of estimate, within five
days after the filing of such copy with such secretary, shall
refer such designation or amendment thereof to the city plan-
ning commission, which, within thirty days after such refer-
ral, shall submit to the board of estimate a report with
respect to the relation of such designation or amendment
thereof to the zoning resolution, projected public improve-
ments and any plans for the development, growth, improve-
ment or renewal of the area involved.
(2) The board of estimate may modify or disapprove such
designation or amendment thereof within ninety days after a
copy thereof is filed with the secretary of the board provided
that the planning commission has submitted the report
required by this subdivision or that thirty days have elapsed
since the referral of the designation or amendment to the
commission by the secretary of the board. If the board shall
disapprove such designaticn or amendment thereof, it shall
cease to be in effect on the date of such action by the board.
If the board shall modify such designation or amendment
thereof, such modification shall be in effect on and after the
date of the adoption thereof by the board.
h. (1) The commission shall have power, after a public
hearing, to adopt a resolution proposing rescission, in whole
or in part, of any designation or amendment or modification
thereof mentioned in the preceding subdivisions of this sec-
tion. Within five days after adopting any such resolution, the
commission shall file a copy thereof with the secretary of the
board of estimate, who shall, within five days after such fil-
ing, refer such resolution to the city planning commission.
(2) Within thirty days after such referral, the city plan-
ning commission shall submit to the board of estimate a
report with respect to the relation of such proposed rescission
to the zoning resolution, projected public improvements and
any plans for the development, growth, improvement, or
renewal of the area involved.
(3) Such board may approve, disapprove or modify such
proposed rescission within ninety days after a copy of the res-
SSa
Olution proposing same is filed with the secretary of the
board. If such Proposed rescission is approved or modified
by the board, such rescission or modification thereof shal]
take effect on the date Of such action by the board. If such
Proposed rescission is disapproved by the board, or is not
acted on by the board within such period of ninety days, it
Shall not take effect.
i. The commission may at any time make recommenda-
tions to the city planning commission with respect to amend-
ments of the provisions of the zoning resolution applicable to
improvements in historic districts.
j. All designations and supplemental designations of land-
marks, landmark Sites, interior landmarks, scenic landmarks
and historic districts made pursuant to subdivision a shall be
made pursuant to notices of public hearings given, as pro-
vided in section 25-313.
k. Upon its designation of any improvement parcel as a
landmark and of any landmark site, interior landmark, scenic
landmark or historic landmark or any amendment or any
- Such designation or rescission thereof, the commission shal]
Cause to be recorded in the office of the register of the city of
New York in the county of which such landmark, interior
landmark, scenic landmark or district lies, or in the case of
landmarks, interior landmarks, scenic landmarks and districts
in the county of Richmond in the office of the clerk of said
county of Richmond, a notiee of such designation, amend-
ment or rescission describing the party affected by, in the
case of the county of Richmond, its land map block number
or numbers, and its tax map, block and lot number Or num-
bers, and in the case of all other counties, by its land map
and lot number or numbers.
§ 25-304 Scope of commission’s powers. a. Nothing
contained in this chapter shall be construed as authorizing the
commission, in acting with respect to any historic district or
improvement therein, or in adopting regulations in relation
thereto, to regulate or limit the height and bulk of buildings,
to regulate and determine the area of yards, courts and other
56a
open spaces, to regulate density of population or to regulate
and restrict the locations of trades and industries or location
of buildings designed for specific uses or to create districts
for any such purpose.
b. Except as provided in subdivision a of this section, the
commission may, in exercising or performing its powers,
duties or functions under this chapter with respect to any
improvement in a historic district or on a landmark site or
containing an interior landmark, or any landscape feature of
a scenic landmark, apply or impose, with respect to the con-
struction, reconstruction, alteration, demolition or use of
such improvement or landscape feature or the performance
of minor work thereon, regulations, limitations, determina-
tions or conditions which are more restrictive than those pre-
scribed or made by or pursuant to other provisions of law
applicable to such activities, work or use.
§ 25-305 Regulation of construction, reconstruction, alter-
ations and demolition. a. (1) Except as otherwise provided
in paragraph two of this subdivision a, it shall be unlawful
for any person in charge of a landmark site or an improve-
ment parcel or portion thereof located in an historic district
or any part of an improvement containing an interior land-
mark to alter, reconstruct or demolish any improvement con-
stituting a part of such site or constituting a part of such
parcel and located within such district or containing an inte-
rior landmark, or to construct any improvement upon land
embraced within such site or such parcel and located within
such district, or to cause to permit any such work to be per-
formed on such improvement or land, unless the commission
has previously issued a certificate of no effect on protected
architectural features, a certificate of appropriateness or a
notice to proceed authorizing such work, and it shall be
unlawful for any other person to perform such work or cause
same to be performed, unless such certificate or notice has
been previously issued.
(2) The provisions of paragraph one of this subdivision a
shall not apply to any improvement mentioned in subdivision
S$7a
a of section 25-318 of this chapter, or to any City-aided pro-
ject, or in cases Subject to the provisions of section 25-312 of
this chapter.
(3) It shall be unlawful for the person in charge of any
improvement or land mentioned in Paragraph one of this
subdivision a to maintain same Or Cause or permit same to be
maintained in the condition created by any work in violation
of the provisions of such Paragraph one.
b. (1) Except in the case of any improvement mentioned
in subdivision a of section 25-318 of this chapter and except
in the case of a City-aided project, no application shall be
approved and no permit or amended permit for the construc-
tion, reconstruction, alteration or demolition of any improve-
ment located or to be located On a landmark site or in an
historic district or containing an interior landmark shall be
issued by the department of buildings, and no application
Shall be approved and nO special permit or amended special]
permit for such construction, reconstruction or alteration,
where required by article seven of the zoning resolution, shal]
be granted by the city planning commission or the board of
standards and appeals, until the commission shall have issued
either a certificate of no effect on protected architectural fea-
tures, a certificate of appropriateness or a notice to proceed
pursuant to the provisions of this chapter as an authorization
for such work.
c. (1) A copy of every application or amended applica-
tion for a permit to construct, reconstruct, alter or demolish
any improvement located or to be located on a landmark site
Or in an historic district or containing an interior landmark
Shall, at the time of the submission of the Original thereof to
the department of buildings, be filed by the applicant with
the commission. A copy of every application, under article
seven of the zoning resolution, for a special permit for any
work which includes the construction, reconstruction or alter-
ation of any such improvement shall, at the time of the sub-
mission of such application or amended application of the
58a
city planning commission or the board of standards and
appeals, as the case may be, be filed with the commission.
(2) Every such copy of an application or amended appli-
cation filed with the commission shall include plans and spec-
ifications for the work involved, or such other statement of
the proposed work as would be acceptable by the department
of buildings pursuant to the building code. The applicant
shall furnish the commission with such other information
relating to such application as the commission may from time
to time require.
(3) Together with the copies of such application or
amended application, every such applicant shall file with the
commission a request for a certificate of no effect on pro-
tected architectural features or a certificate of appropriate-
ness in relation to the proposed work specified in such
application.
§ 25-306 Determination of request for certificate of no
effect on protected architectural features. a. (1) In any case
where an applicant for a permit from the department of
buildings to construct, reconstruct, alter or demolish any
improvement on a landmark site or in an historic district or
containing an interior landmark, or an applicant for a special
permit from the city planning commission or the board cof
standards and appeals authorizing any such work pursuant to
article seven of the z
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