Hilbertz, v. City of N.Y.

Full title: In the Matter of the Application of Errick Hilbertz, Shirley Mondesir…

Court: Supreme Court, Kings County

Date published: Apr 5, 2019

2019 N.Y. Slip Op. 50515 (N.Y. Sup. Ct. 2019)

Opinion

520815/2017

04-05-2019

In the Matter of the Application of Errick Hilbertz, Shirley Mondesir (Individually and as President of the St. Mark's Avenue Independent Block Association, Inc.), Janice Jarrett, Vincent Miller, Colleen Carter-Neblett, Robyn Berland, Adrian Straker, Lynn Cave, Bergen-Kingston Block Associate, Crown Heights North Association, Inc., Petitioners, v. City of New York, New York City Landmarks Preservation Commission, New York City Housing, Preservation & Development, Institute for Community Living, Institute for Community Living Real Property Holding Corp., ICL St. Marks Avenue Apartments, L.P., Respondents.

Attorney for Petitioners Philip A. Solomon, Esq. Jacqueline McMickens & Associates, PLLC 26 Court Street, Suite 1600 Brooklyn, NY 11242 Attorneys for Respondent City of N.Y. Zachary W. Carter Corporation Counsel of the City of NY 100 Church Street, Room 5-163 New York, NY 10007 Attn: Sheryl Neufeld, Esq., Nicholas Ciappetta, Esq. Max Sarinsky, Esq. Attorneys for Respondent ICL Christina H. Bost Seaton, Esq. Richard B. Cohen, Esq. 445 Park Avenue, Ninth Floor New York, NY 10022

Katherine A. Levine, J.

Attorney for Petitioners Philip A. Solomon, Esq. Jacqueline McMickens & Associates, PLLC 26 Court Street, Suite 1600 Brooklyn, NY 11242 Attorneys for Respondent City of N.Y. Zachary W. Carter Corporation Counsel of the City of NY 100 Church Street, Room 5-163 New York, NY 10007 Attn: Sheryl Neufeld, Esq., Nicholas Ciappetta, Esq. Max Sarinsky, Esq. Attorneys for Respondent ICL Christina H. Bost Seaton, Esq. Richard B. Cohen, Esq. 445 Park Avenue, Ninth Floor New York, NY 10022 Katherine A. Levine, J.

Recitation, as required by CPLR 2219(a) , of the papers considered in the review of this motion: Papers Numbered Petitioners' O.S.C. for a T.R.O., Amended Verified Petition with Exhibits 1 City Respondents' Affirmation in Opposition to Petitioners' Application for a T.R.O. with Exhibits 2 ICL Respondent's Affirmation in Opposition to Petitioners' Application for a T.R.O. with Affirmations and Exhibits 3 Petitioners' Reply in Support of O.S.C. with Affirmations and Exhibits 4 City Respondents' Verified Answer to Amended Petition with Exhibits 5 ICL Respondent's Verified Answer to Amended Petition with Supplemental Woelfling Affidavit and Exhibits 6 Petitioners' Verified Reply 7 Court's letter dated April 16, 2018 8 City Respondents' Sur-Reply with Carroll Affidavit 9 ICL Respondent's Sur-Reply 10 Petitioners' Sur-Reply 11 ICL Respondent's Supplemental Sur-Reply Memorandum 12 City Respondents' Memorandum in Response to Petitioner's Sur-Reply 13

This CPLR Article 78 proceeding seeks to annul the Certificate of Appropriateness ("COA") granted by respondent New York City Landmarks Preservation Commission ("LPC") to respondent Institute for Community Living and its related corporate entities ("ICL")¹ that would permit construction of a new L shaped building around a free standing gothic mansion - the Dean Sage Mansion ("Mansion"). The Mansion is located at 839 St Marks Place in the Crown Heights North Historic District ("CHNHD" or "District'). Petitioners assert that the Eastern side of the house looks out upon vast garden grounds which "lend architectural space and context to the house's severe gray stone and provide passerby with a true sense of experiencing the green landscaped gardens of 19th century America." (Amended Petition ¶ 19). They also assert that the garden is the last remaining original design formal garden within the historic district.

1 The other named respondents are the Institute for Community Living Real Property Holding Corp. and ICL St Mark's Ave Apartments L.P. Respondents ICL never spelled out the differences between these entities.

The crux of petitioners challenge² is that the LPC ignored the adverse impact that the new L shaped building will have upon "one of the most unique, oldest and important 19th century free standing mansions remaining in the District, as well as its adjacent parterre garden (Petition, ¶¶3)" because the proposed building would obliterate the free standing nature of the mansion and cut the parterre garden by two thirds. They contend that the approved plans are "out of character" and "out of scale" with the limestone street scape of St. Marks Avenue and the historic district, and that the granting of the COA was not rationally related to the architectural and historic character of the District. They further contend that based upon the manner in which the public hearings were conducted, as well as some of the comments made by various members of the LPC, the granting of the COA was affected by an error of law since the LPC did not consider all of the factors mandated by §25-307(b) of the Administrative Code ("Code") and that its decision was "outcome dependent" (Amended Petition, ¶72). During arguments before the Court, petitioners refined their argument to state that LPC was "entirely deferential to ICL's project, they considered the financial strength, the number of units and it seemed like lip service to the community and LPC should not have considered the economic arguments of the respondents." (Dec. 21 hearing at p. 6).

2 Petitioners challenge LPC's conduct on a number of other grounds including an alleged violation of the New York Open Meetings Law (Public Officers Law §100 et seq); LPC's Rules of Practice & Procedure, 63 R.C.NY 1-01 et seq; and section 3020 of the NYC Charter. This decision will not address these other challenges as all parties agreed that the dispositive issue before this court is whether LPC's granting of the COA was arbitrary and capricious or contrary to law.

Both ICL and LPC contend that LPC's decision to approve ICL's proposal was a "well reasoned and rational determination of recognized experts" and came about only after extensive public discussion and modifications They also contend that LPC gave full consideration to the designation report, the historic nature of the District, and the mansion which ICL made extensive efforts to restore, before issuing the COA and that its determination should therefore be upheld. LPC also asserts that it has broad discretion in issuing a COA and that its issuance was in conformity with the law. However, they only minimally addresses petitioners' contention that the demolition of two thirds of the garden would adversely affect the free standing nature of the mansion and hence, the character of the historical district.

This is apparently the first case, within the lexicon of challenges to LPC's actions, to address whether the LPC, in determining whether to issue a COA to develop or change a unique building within a historic district, must consider the open space or landscaping component which defines the unique building. The core issue presented herein is whether the LPC, in granting the COA to allow the ICL to construct an additional building on more than 50% of the Victorian Garden, which both sides concede would impinge upon the free standing nature of the mansion, acted in accordance with its mission of protecting, enhancing and perpetuating the improvement and landscape features of the District. A number of the commissioners expressed their support for societal goals fostered by this project, indicated that they wanted to see the project done, and to that end deferred to the economic and fiscal constraints allegedly faced by ICL in accomplishing the project. This court therefore must construe N.Y.C. Administrative Code ("Code")§ 25-307(b)(2) to decide whether the LPC considered factors outside of its legislative mandate by weighing the societal and economic merits of the ICL construction project against the special historical and aesthetic character of the district, of which the free standing mansion, as framed by the garden, is a major component.

Procedural History

This proceeding was initially commenced by Order to Show Cause ("O.S.C.") by petitioners in late November 2017. Petitioners Derrick Hilbertz, Shirley Mondesir (individually and as President of the St Marks Independent Block Association ("SMIBA"), and the other named individuals are residents of the block or the immediate vicinity in which the mansion is located ("petitioners").Petitioners Bergen Kingston Block Association and Crown Heights North Association ("CHNA") are civic associations (sometimes referred to as "civic associations") charged with enhancing and preserving the particular block in question as well as the greater historic district.

Respondent LPC is a city agency established pursuant to the City Charter §3020 et seq. and is charged with enforcing the law with respect to the establishment and regulation of landmarks and historic districts (§3020(6)). It is comprised of 11 members, including three architects, a historian qualified in field, and at least one resident from each of the five boroughs. Respondent ICL is a 30 year old not for profit human services agency that provides housing counseling and other support services for individuals with mental illness, substance abuse and developmental disabilities.

The NYC Landmarks Law ("LL") was enacted in 1965 by the City Council in response to the City's loss of a number of its more significant historic structures, including the original Pennsylvania Station. See, Penn. Central Transp. Co.v. NYC, 438 U.S. 104, 109, 57 L. Ed 2d 631 (1978); Mtr. Of Save America's Clocks. Inc. V City of New York, 157 AD3d 133 (1st Dept. 2017). Section 25-301 et seq of title 25, chapter 3 of the Code further delineates LPC's purpose and powers pertaining to the establishment and regulation of historic districts. Section 25-301(a) contains a finding that many of the city's improvements and landscape features having a "special historical or aesthetic interest or value ...have been uprooted, notwithstanding the feasibility of preserving and continuing the use of such improvements and landscape features ...without adequate consideration of the irreplaceable loss" that such uprooting causes. Section 25 -301(b) of the LL declares that the purpose of the law is to effect and accomplish the "protection, enhancement, and perpetuation of...improvements and landscape features and of districts which represent or reflect elements of the city's historical aesthetic and cultural heritage." Section 25-307 sets forth the Factors governing the issuance of the COA.³

3 The legislative intent and description of the LL will be discussed on pp 22-24 infra.

In April 2007, the LPC issued a Designation Report ("Report") for the CHNHD.⁴ The Summary of the Report indicates that the district contains "some of Brooklyn's finest and most detailed row houses, ...freestanding residences ...dating from the middle of the nineteenth century to the 1930s." (Report at 4). It also states that "(t)he district is among Brooklyn's most architecturally distinguished areas...featuring a broad array of outstanding residential architecture." Id. After improved transportation links with the Fulton Ferry, the area underwent "suburban development" in the 1850s, characterized by freestanding villas on spacious lots. While most of these villas were "swept away" by development, a few remained within the district including the 1870 Dean Sage mansion, which is a rare High Victorian Gothic residence designed by Russell Sturgis, a master of that style. (Report at 4). The main section of the Report states that "only a couple" of the early freestanding houses remain. Id. at 15. The Dean Sage house, although altered after the 1930s with the construction of additions, remains "as a well preserved reminder of northwestern Crown Heights suburban years." (Id).

4 The Designation Report is annexed to ICL's Answer as Exhibit "E"The portion of the Report describing the Dean Sage Residence is annexed to the City's Answer as Exhibit "A"

The Report then devotes a paragraph to the architect of the residence - Russell Sturgis - as an "eminent architect, writer and authority on art and architecture," and notes that the "Sage Residence is one of a few of his extant designs in New York City." (p. 58). The Report then devotes four pages to the Russell Sage Residence (pp. 263-266) where as it allocates only half pages to the other significant buildings in the District. The Report reiterates that Sturgis is considered one the of the High Victorian Gothic Style's "finest practitioners" and that the Sage Mansion is a "rare example" of one of his houses in New York City (263). The Report describes the Dean Sage resident as "one of the oldest and most important nineteenth-century mansions remaining in the District." (p. 263). Although some changes were made to the mansion throughout the years, including the elimination of the front porch "it remains remarkably intact" and was a private residence through the 1930s. (Id.). A tan brick three and a half story dormitory was attached to the north and west side of the mansion at some point in the 1920s or 1930s. A smaller front yard and garage were also added in the 1930s. The mansion was first used a residence for Catholic nuns and has been a group housing environment for nearly 90 years.

The LPC "walking tours" for Crown Heights North (Exh. "F" to ICL's papers) devotes a paragraph to 839 St. Marks Ave. It states that St. Marks Ave became one of Brooklyn's "finest residential corridors" after 1850, and that its well to do families purchased or built some of the "finest houses in the district." The Dean Sage "corner House" dates to 1870 and is among the "oldest and most important buildings in the district. It is a rare surviving residence by Russell Sturgis, the architect best remembered as editor of the multi-volume Dictionary of Architecture and Building."

Petitioners describe the eastern side of the Mansion ("which would be largely obscured by the planned extension') as looking out upon landscaped grounds which were allowed to fall into disrepair but are repairable, and which "lend architectural space and context to the house's severe gray stone and provide passerbys with a true sense of experiencing the green-landscaped gardens of 19th Century America." (Amended Complaint ¶19). The petition then states that this is the "LAST REMAINING original -design formal garden within the district." (Id). The house is framed by a "terraced and sunken brick work parterre garden with a sundial at its focal point and provide the "necessary space for the gothic architecture of the house to be experienced." (Id.).

The ICL correctly points out that the Designation Report did not discuss the garden much less describe it as the last remaining original design formal garden with the District. Rather, the Report merely states that there is a grass yard with trees running in front of the south projecting bay and there is large east yard with brick pavers and planting beds (p. 266). It is undisputed that neither the Mansion nor the garden were ever designated as a landmark by the LPC.

In or about 1998, ICL acquired the mansion and commenced operating a community residence as an Office of Mental Hygiene ("OMH") licensed traditional housing center for 48 mentally challenged adults until it was closed as part of the premises redevelopment plan. In 2015 ICL embarked on a plan to expand the mansion premises so that it would meet "ICL's programmatic needs" of creating supporting housing, i.e. ("long-term, affordable subsidized housing with onsite services for residents" (ICL answer, ¶28)), and eliminate its single room occupancy housing ("SROs"). During a review of its portfolio, and taking into consideration cost, ICL determined that the mansion offered "a possibility for expansion" as it had approximately 41,5000 buildable square feet of unused development rights. This development was subject to the approval of the LPC since the mansion was located in the Historic District which posed its own challenges. (Answer ¶18). ICL retained Easton Architects and Dattner Architects; Easton completed an Existing Conditions Survey ("ECS") in May 2015.

The ECS summary first stated that Russell Sturgis was a renowned architect who built many churches, banks and institutional buildings and was commissioned to design several buildings at Yale. Dean Sage hired him to build the mansion in 1870. "The Sage residence does not have an elaborate or overtly ornate appearance, but instead is rather sophisticated in its massing and detail. The residence was surrounded by elegant grounds and had a large front porch. The Dean Sage Residence is one of the only surviving Sturgis buildings left in NYC." (p. 11). The ECS then noted that the CHNHD offers "outstanding example of mid-late 19th century American styles." Section III-C of the ECS contains four pictures of the garden with stone walls and parterre tiles. Although the pictures depict an erstwhile garden in disrepair, the court can discern its once elegant and formal layout.Section IV of the ECS contains the Findings and Recommendations which all pertain to the mansion and do not discuss the garden in detail. It states that the building exterior retains much of the original historic fabric as well as the overall massing and configuration, "honoring the original architectural design intent, and that the "architectural character and identity of the building's exterior remains intact."

The ICL Plan

The Easton team determined there were innumerable inefficiencies in the design of the 1930s addition that made its use unfeasible. Both architectural firms prepared an initial proposal for the redesign of the premises and "had several meetings with staff at the LPC," and, based upon the staff's feedback, the initial change design was changed.

On or about February 25, 2016, ICL completed an application to the LPC for a COA and submitted it to ECS. ICL's presentation before the LPC called for the demolition of the rear addition, restoration of the Dean Sage residence and construction of an L shaped building around the original mansion ("new building") which would consist of five and a half stories fronting on both Brooklyn and St Marks avenues (five full stories with an additional ½ floor set back). The new building would be set back 61 feet from both the property line and the edge of the mansion on St Marks Ave which, including the additional setback on the north side of the property, would retain the majority of the yard area on St Marks Avenue. See, Exterior Restoration and Rear Side Addition" ("Exterior Restoration") (Exh. "F" attached to the City Answer). The proposal also included restoring and reconstructing the mansion's porch and connecting the scaled back additions with the mansion through a glazed connector.

The pictures included in the Exterior Restoration depict a vast side yard garden that effaces the entire eastern stone wall of the existing mansion as well as the eastern wall of the 1930s addition from St. Marks Ave to the northern property line. The pictures reveal a free standing mansion from the vantage point of St Marks Avenue looking north. While the garden is in a semi state of disrepair, portions of it still appear to be verdant with overgrown grass, trees and bushes, and remnants of the Victorian Garden, such as a circular brick area with a fountain and or sundial remain.⁵

5 All the parties engage in a game of semantics about the garden. While the respondents stress how the historic designation hardly discuss the garden, they then argue that they are "saving a great proportion of the garden" by creating more green space on Brooklyn Ave and north of the new building. The petitioners extol the merits of the garden as if it was a Victorian wonderland while it in reality is in state of disrepair. The crux of this case is not about the merits of Victorian landscaping, but rather whether the diminution of the garden by 60 percent will compromise the free standing nature of the mansion, and, if so, whether this Court should uphold the granting of the COA.

The architectural renderings by ICL architects of the Proposed New buildings (Exh. "J" to City's Answer) reveal that more than half of the garden would be eliminated by the new building looking north from St. Marks Place and that the two wings of the new building (effacing both Brooklyn and St Marks Place) are massive. In the section entitled Original Scheme, the second photo entitled "Looking north east from St. Marks Ave," which superimposes a photo of what the new building would look like on St. Marks Ave, completely eliminates the sense that the mansion is free standing or that there is a deep set garden as it depicts small patch of greenery in front of the new building.

Although the voluminous papers submitted do not clearly set forth the exact time frame of who was notified when about the ICL application, it is not disputed that once ICL submitted its presentation to the LPC, LPC made the same publicly available in advance of the March 22, 2016 public hearing. ICL also avers that since the premises were located in Community Board 8, it submitted its initial plan to the CB8 Housing and Land Use Committee. ICL also claims to have attended meetings with petitioners SMIBA and CHNA.

On February 6, 2017, the NYC Department of Housing Preservation & Development ("HPD") wrote to petitioner Hilbertz (Exhibit "B" to the original petition) that it was undertaking a review of the project site in accordance with Section 106 of the National Historic Preservation Act of 1966 (Section 106), since the project site was located within boundaries of the State and National Registrar of Historic Places ("SNR") and the CHNHD. It states that the project sponsor ICL proposes to demolish the old addition constructed at the north end of the mansion and develop a new building which would include a 6 story structure facing Brooklyn Avenue and a new 4 ½ story building effacing St Marks Avenue. The new edition would be "fully integrated" with the existing mansion and would create approximately 70 units of supportive and affordable housing.

HPD found that the project "could result in indirect visual impacts due its massing, facade materials and fenestration being different from the historic buildings prevalent in the area. It also determined, in consultation with the State Historic Preservation Office ("SHPO"), that the proposal would "constitute an adverse effect on historic properties under §106." This was based upon the information provided, as well as SHPO's review of an alternative analysis provided by the sponsor and its architect, which concluded "there were no feasible alternative that would meet the goals and objectives of the project as currently proposed." SHPO ultimately found, by letter dated September 29, 2016, that based upon the modification of the initial design, there was an appropriate change that lessened the visual impact of the proposed new construction on the historic buildings as seen from St Marks Ave.

By letter dated February 23, 2016, CHNA (Exh. "G" to City's Answer) notified the Commissioner of the LPC that it was "deeply concerned" that the proposed two large institutional buildings would "adversely affect the historic and architectural qualities of the property and the immediate neighborhood." CHNA stated that the Mansion is "a rare freestanding mansion designed by Sturgis" and that "the importance of this detached mansion on its spacious lot should not be understated" since the LPC designation report states that "it is one of the oldest and most important nineteenth-century mansions remaining" in the District. Disputing the applicants' statement that the land is "unused," the CHND stated that the land is actually a "character defining feature of the mansion. Mansions are inherently different from other buildings in the district...as they are detached and the open spaces of the grounds are a significant feature of their context." It then stated that ICL's proposal to provide 75 units of affordable housing was "out of scale and overwhelms the Mansion." CHNA suggested that ICL retain and rehabilitate the 1921 Brooklyn Avenue addition and or use its other property holdings to expand since "it is completely inappropriate to compromise a landmark site when there are other options to build elsewhere."

ICL presented its proposal to CB 8 on March 10, 2016. By letter dated March 15, 2016, CB 8 informed the LPC that its members voted overwhelmingly in favor of withholding support for the ICL's proposal to add two new buildings to the Mansion because the project is "grossly out of character with the street scape of limestone rowhouses." (Exh. "F" to petition). Despite ICL's having scaled back the mass and bulk from its original proposal in January 2016 so that the side yard and some of the garden facing St Marks would remain, and the proposed new buildings at 5.5 stories would surround the mansion as a "backdrop," CB 8, on behalf of local community groups, requested that another location be selected since the project would "completely alter the visual elements that warranted historic designation"

By Statement dated March 16, 2016, SMIBA informed ICL that it had "completely rejected" the proposal. It was particularly opposed to the destruction of the Garden at St. Marks Place which "is an integral part of the Mansion's free standing design" and believed that the project would "overwhelm the historic Mansion...change the neighborhood's landscape and cause of myriad of other projects." (Exh. "E" to petition).

On March 22, 2016, LPC held a public hearing to consider the COL. LPC staff member Mr. Knowles introduced the mansion as a "High Victorian Gothic freestanding mansion" while staff member Ms. Ripple stated the application proposal was to demolish a later three story addition at the north side of the property, restore the historic mansion and construct a new six story building with a set back penthouse. Joseph Beaver from ICL was the first speaker. He testified that ICL was switching to permanent supportive housing which offers more independent living in self contained apartments and mixed populations for a "more normalized environment." "The rehabilitation of the mansion and current extension" was not feasible from a development and operating services standpoint because the current space was outmoded and not in line with contemporary housing standards. He indicated that HPD, which was the likely source of financing, required at least 50 units minimum for a project to be efficient and this could not be achieved through simple rehabilitation. The plan was to remove the obsolete extension, renovate and restore the mansion and build 75 units of mixed housing, creating 45 units of supportive housing for mentally ill adults (reduction of three units - current population of 48) and 30 new units of "much needed affordable housing" in one of the most rapidly gentrifying neighborhoods." (P. 7). He concluded that ICL was committed to historic preservation of both the interior and exterior of the mansion.

Lisa Easton, the principal architect of Easton Architects, summarized that the proposal called for the restoration of the historic mansion and site features, as well as the removal of the 1920s and 1930s additions which were "institutional" and not in keeping with the character or identity of the site (P. 15). The design team determined that they could not adaptively reuse the existing additions for the new purposes ICL intended to introduce. John Woelfling, a partner with Dattner Architects, described why the existing extension could not be adopted: the floor plate depth was too shallow (34 feet as compared to the ideal depth floor plate of 58 feet); the corridor was too narrow; an elevator introduced took up more useable floor area and that all of these inefficiencies were just "not practical." (Id at 14-15). Easton stated that contextually, St Marks Place had a "theme of institutional use" and also had front yard setbacks at the smaller residential scale right next to the ICL site which was "a very character defining element to the block." (p. 16). With the neighborhood in mind, ICL planned an L shaped building and scaled down the addition from a full build out to "something more contextual that had a better relationship with not only the mansion, but also the adjacent residential buildings along St Marks and Brooklyn Avenues" (Tr. 18). The main entrance to the extension comes from St Marks Place so that the front of the mansion would still be perceived as the front of the building and site. They also pulled the building back from St Marks to be "not only deferential to the mass of mansion" but to retain some of the open space. With respect to the garden, Woelfling testified that they were able to "maintain some of the landscaping features...as an outdoor space" (Tr. 19). Neither Easton nor Woelfling addressed the unique stand alone nature of the mansion.

Woelfling then described the proposed building materials and details of the building, which picked up the details of the adjacent buildings along St Marks Place, and that the massing was not much taller than the existing mansion and adjacent buildings. Woelfling concluded that: "You really see the full effect of the building being recessed, the open space, and how this residential building really retains its prominence on the block...and is deferential to the mansion." (P. 25). The corridor between the mansion and additional building lined up so that the site planning was deferential to the mansion. (Tr. 27).

Chair Srinivasan noted that: "the whole design approach is to try and get the development that you need that will fulfill your mission and we understand that you have funding in place, that you're not using your full square footage," and that the design approach and site planning is to have the new building break free from the main mansion in one sense so that the latter can be viewed as three dimensionally, which is "a great thing." (Tr. 27-28) The chair then questioned whether, given the new set of zoning regulations in place requiring a rear yard at the back of the addition, ICL had pushed the building to the rear as much as they could and whether "there is more flexibility to push portions of the building further?" (Tr. 28). Mr. Woelfling admitted that there was some flexibility in site planning but that if they pushed the building all the way back to what would be permitted by the zoning resolution it would become a "forgotten end space," a space "you could not use." (Tr. 28-29). He stressed the importance of the alignment of the existing corridor with the proposed corridor from a security perspective and that if the additions went too far back, there would be a lot more circulation that becomes very circuitous (Tr. 29). Chair Srinivasan then queried what the right dimension would be to allow ICL to accommodate its square footage yet still allow the mansion to breathe.

Shirley Mondesir, President of SMABA, commented that although the proposed COL stated that ICL would construct one building, its plan indicated that they would construct two buildings on the garden's grounds. The lot mentioned in the proposal was actually a garden which was salient to the issue before the LPC because "mansions are distinguished from other historical buildings as the land or gardens are the open spaces which significantly enhance and address features of their particular mansion." (Tr. 36). While the Association understood and was not opposed to the need for affordable housing, the "squeezing two buildings into this property" on an already saturated block was not beneficial to the community and approval of the project of such magnitude would have "an adverse effect on the contextual nature of the block" and would set a precedent for further development" (Tr. 38).

Barbara Zay of the Historic District Council ("HDC") emphasized that this was a rare free standing mansion in Crown Heights North which, between 1890-1920, had many grand mansions, almost all of which were demolished for middle class housing (Id). Zay stated that the application "in arguably represents a major change to the character of the building and its context" and that more efforts should be made to respect the mansion, especially on the St. Marks Ave side "where more bulk should be sacrificed and setback to retain and honor the mansion's freestanding orientation and allow for some breathing space." (Tr. 39).

Petitioner Derek Hilbertz stated that it would be a "travesty" were the LPC determination to "turn on issues of brick color or metal shininess..." (Tr. 40-41). Rather, the core issue behind the COA was that "this block is the definition of why we have a Historic District. This is one of the last freestanding mansions. It's a feature that defines the area." (Tr. 41). He testified that the addition has a "rudish blockishness" that has nothing to do with the area and would destroy 2/3 of the garden which was an integral part of the Mansion" and "defines the Mansion." (Id.). He also testified that it was absurd to take the garden away and that the addition was not the sort of thing that the district was created to protect (Tr. 42). Other community members reiterated these views.

Commissioner Baron inquired of ICL as to whether they explored only developing the Brooklyn Ave side and taking advantage of its full depth. Woelfling stated that if the site were longer in the north-south direction they could have introduced an L into the building, but that there was very limited dimension there. They could have taken down some of the mansion and put more mass there but that would not make sense. Commissioner Baron then asked whether they could have an entry from the garden but much further down from St. Marks Avenue. Some unidentified speaker stated that the land is very valuable and that there is pressure to utilize the land efficiently as well as the economic pressure scale which is a minimum of 50 units to operate and provide services. The current unit count proposed by ICL was 75 units (Tr. 49-50).

Commissioner Srinivasan then closed the hearing. She recognized that this was a "very challenging site" because there was an "incredibly distinguished mansion" that sits on the corner. On the other hand the land was large enough for the non-profit to really expand their mission on this site and conceptually, the commissioner thought their approach was "appropriate." (Tr. 51). She noted that since Brooklyn Ave already had an enlargement, which in some ways compromised the freestanding nature of the mansion along Brooklyn Ave, she agreed with the approach of putting more mass there which would actually expose more of the mansion to the north on Brooklyn Avenue. She noted that the garden was currently juxtaposed next to the mansion and that the "approach was to try and keep that feeling" (Tr. 52) and that was why she had asked whether they could push the building back further. However, since the proposal would allow the garden space to be about 60 feet deep, there were landscaping designs that would still "allow for the mansion to look and feel as if it's within a garden space." (Tr. 53). There was definitely "the potential to define this project a little further and still allow ICL to get the massing and the type of configuration they had right now, such as only having one entrance rather than two entrances on St. Marks Place, and somehow allowing the garden to continue along the street scape. The two entrances made the lot look subdivided, but with one entrance the addition could be read more as a background building and, along with the landscaping, it could "still read in a way that the mansion is separate or within a garden" (Tr. 54).

Chairman Goldblum then stated that this project was a "gauntlet thrown down to us to figure out how to make ...this work because the mission...that this institution has is incredibly important. The need is very, very, very significant and I think we should do our utmost to try to make it work." (Tr. 54-55). He continued that there was "a lot interesting" about this application and that the site plan tried to be as deferential as possible to the mansion including the very deep setback along St Marks, all of which were "efforts to allow for the mansion to be read as a single object, a freestanding building and I think that they're successful in that regard" (Tr. 55). Goldblum thought the offsetting of the additional building away from the mansion was effective and that the garden in front of St. Marks Avenue was very adequate and allows for the building to be read as a single-family free standing mansion. Finally, he suggested increasing the massing on the Brooklyn side and recessing the massing on St, Marks where it does not "defer enough to the mansion, "so that the impact of the building was lessened on that facade." (Tr. 58- 60).

Chair Srinivasan stated that "I think we as a commission should try and find ways to still allow them that program." (Tr. 62).Goldblum stated that while the top of the proposed building successfully emulates the scale of the adjacent town houses, which was appropriate for Brooklyn Ave, the point on St Marks Ave would be to "suggest the continuity of the garden as a feature even though it's not going to be the full site (Tr. 64), and that the eve pulled the addition back to the Street, To that end, Goldblum suggested that ICL take half a floor and place it on Brooklyn Ave so that the new building effacing St. Marks Ave could defer to the mansion rather than being pulled back again to the street. That would reduce the scale of St. Marks and make "more successful the attempt to recall the openness, the deferral to the house of the open space" (Tr. 64-65). The Chair suggested that ICL explore on the St. Marks side some sort of delineating or setback off to the fourth floor, to "see how they can recapture that square footage elsewhere" or some more bulk on the Brooklyn Avenue side line or even expand the unit to the lot line to get more units ...," (Tr. 67). She also suggested that ICL explore having just one entrance on St Marks Ave and look at the landscaping" to soften the positioning of the mansion within the complex" (Tr. 67).

In response to the LPC Public hearing on March 22, 2016, and pursuant to suggestions made by several Commissioners, Easton and Dattner Architects prepared a Revised Plan. By affidavit dated April 12, 2016, John Woelfling stated that under the Revised Plan (Exh. "C" attached to Woelfling affidavit), the planned L shaped building located on St. Marks Avenue would be scaled back to four and a half stories from five and a half stories, with the top half floor being set back so that it would not be visible from the street. The building facing Brooklyn Avenue would be increased to a full six stories from five and a half stories with no set back. These changes would reduce the number of units from 73 to 67 which included 40 units of supportive housing and 26 units of affordable housing. He testified that the economies of scale to make supportive housing economically viable required a minimum of 50 units in supportive housing residence (60 % supportive housing units and 40 % being affordable housing units) but that "from a development and financing, and operations standpoint" a minimum scale of around 70 units was necessary. The revised plan thus actually included 70 units which was accomplished through interior adjustments. Woelfling also stated that the new addition would be pulled away from the Mansion and connected to the mansion via a glass connector so that the mansion would now be viewed "in the round."

By letter dated April 12, 2016, Joseph Coppola, principal of Dattner Architects, discussed the five requested modifications by the LPC and submitted design sketches (Exh. "H" to City's Verified Answer). Of pertinence to the instant matter, Coppola stated that the scaling back of the St. Marks Ave portion of the new addition to four stories with an addition ½ floor setback was achievable as was treating the set back with seam cladding to give it the appearance of a mansard like roof element; they could also increase the bulk on the Brooklyn Avenue portion to six full stories. Coppola opined that the entrance should remain on St. Marks Ave due to the fact that "the Mansion's main entrance and orientation relates to St Marks Avenue." However, he recommended that the stairs to the entrance of the Mansion on St. Marks be moved back to allow a side paved walkway to be "unobtrusively introduced to the new addition which would allow the historic fence and low stone wall to be uncut and unchanged on St. Marks Ave allowing for "one central entrance point in front of the Mansion.

By letter dated April 11, 2016, petitioner Hilbertz addressed the LPC in anticipation of its meeting next day. He stated that the LPC's discussion during the March 22nd meeting about the appropriateness of the proposed new structure in his opinion "veered sharply towards considerations outside of the intent and purpose of the [LPC] and of the Historic District designation under which this project must be considered." Hilbertz stated that the LPC first acknowledged the importance of the work to the community by the current occupant - ICL- and from that point forward, discussion centered not on whether the proposed structure should be built on "such an important part "of the designated district, but primarily on "aesthetic details of what shapes and material are appropriate for the proposed building." Hilbertz contended that the "strongest counter suggestion" seemed to be to move the main mass of the proposed building further north so as to occupy less of the property's original garden. Hilbertz contradicted LPC's contention that the garden was merely a "plot" or an "afterthought." Rather, the garden was integral to the architectural design of the property - it was a formally arranged garden with original herring boned masonry pathways, a stone amphitheater and a sundial surrounded by an original wrought iron fencing atop original stone masonry. He stated that the garden "literally defines the house as a free standing mansion, creating the offset needed for such: it is the space that defines the form." Building a new large modern building would envelop the mansion on two sides and demolish almost all of the garden. This "will obviously and manifestly destroy the special 'sense of place' of this location." Similarly, by letter dated April 11, 2017, CB 8 reiterated its opposition to the COA.

On April 12, 2016, the LPC held its second hearing on the ICL application for a COA. Ms. Ripples summarized that the LPC raised two primary concerns during the public hearing: that the height of the building on St. Marks Ave detracted from the historic mansion and that the break in the new wall and new entrance on St Marks diminished the primary entrance of the mansion and the historic garden context. "The commission asked the applicants to explore setting back the building after the 4th floor on the St. Marks side and to relocate that bulk to the Brooklyn Ave side," and also explore the relocation of the entrance to preserve the garden context (Tr. 4-5).Ripples then stated that ICL had returned with revisions: the new building on St. Marks was now four stories with the fifth half floor being set back and the building on Brooklyn Avenue was raised to a full six stories with no set back. The entrance points to the mansion were consolidated to the new historic entrance through the garden wall.

LPC Chair Srinivasan first stated that ICL "had been very responsive to our issues and concerns" (Tr. 6). The Chair stated that the small move of only having one entrance from St Marks Place; i.e. the original entrance to the mansion - will address "at least a perception from the street that it still remains one complex," as opposed to it feeling "like two buildings." She also applauded ICL for putting more mass and height on Brooklyn Avenue in accordance with the suggestion of two commissioners (Tr. 7).Commissioner Goldblum commented that the project "is going to be a balance. It's an adaptive reuse of an individual house to do something very important and very unfortunately rare, which is to provide some very highly needed low-income housing. So I think our ability to work with them is very, very important and I think a positive outcome for this is as important for the city" (Tr. 8). The increased massing on the Brooklyn Avenue side, which was the "less important side," preserves "one of the most distinctive aspects of the building ...which is the deep garden and small scale of the St. Marks Avenue side." (Tr. 8). Chair Srinivasan then stated that the proposal was about "striking a balance" between a historic district with a mansion that did not have an individual designation but was a "prominent building" against the fact that the ICL had occupied the mansion for several decades and they were providing affordable housing which had its "own realities" including the need to have a certain number of units to make it viable; i.e 70 units (Tr. 10). Furthermore, the rendering indicated that the building was pushed back significantly from the street which "still allows the mansion to be viewed from several sides, not completely in the round, but it never was to begin with." (Id).

Commissioner Chapin then recommended approval of the proposal and the granting of a COA to demolish the existing rear and side yard addition on Brooklyn Avenue, restore the exposed facades of the historic mansion in rusticated sandstone, and construct a new L shaped building composed of two wings: a four story wing set back from St. Mark Avenue with a setback penthouse on the fifth floor and a six story wing on Brooklyn Avenue. Among the findings pertinent to this proceeding were that the existing 1930s addition did not relate to the historic mansion in terms of style, scale, or materials and hence its demolition would "not detract from the special historic and architectural character of the mansion of the CHNHD" and that its demolition would allow for the restoration of the historic facades of the mansion "returning (it) to a more freestanding building" (Tr. 11). The LPC also found that since the mansion already had substantial additions at the site far longer than it was freestanding, the proposed building was in keeping within this context (Tr. 11-12); that setting back the new building from both streets would allow the mansion to appear in the round and maintain the prominence of the historic mansion at the corner; that the "deep setback location" of the building on St Marks Ave "will preserve the presence of the historic garden context of the house, the lot and the historic green space" (Tr. At 12-13); and that the new building will connect with the historic mansion at the first floor only via a glass enclosure which will expose the stone facades and minimize the physical impact of the new building. With specific respect to landscaping, Chapin noted that the "historic landscape features in the St. Marks Ave garden and the perimeter wall and fence will be retained recalling the historic building, and garden and site conditions" and that the proposed entrance to the new building utilizes the historic approach and existing garden paths thus allowing the historic perimeter wall to remain intact which reenforces the "retention of the garden context." (Tr. 15). On April 12, 2016 the LPC issued a Status Update Letter to ICL informing them that LPC had approved its proposal to alter the facades, demolish an addition and construct a new building. On June 28, 2017 the LPC issued a PERMIT COA to ICL which reiterated all the findings set forth by Commissioner Chapin during the April 12th hearing.

Hearings Before Court and Court's Finding as to the Effect of the Addition Upon the Historical Garden

The Court initially signed a TRO preventing ICL from tearing down any structures or beginning construction on the lot. At the first hearing held on November 28, 2017 on whether to continue the TRO, the Court focused the parties on the primary issue raised by the case: "there is an additional building that's taking place, that's impinging on this garden and it is somehow affecting the beauty, the historic landmark worthiness of this building." (11/28 at 10). During oral argument the Court requested the parties to address why the new buildings could not be reconfigured or the program changed so that more of the Victorian garden could be retained thus allowing the mansion to retain its stand alone status on St. Marks Ave. The Court also inquired whether it was even within the purview of the LPC's mission to consider factors such as ICL's economic challenges in funding the project and or the societal merits of housing for the mentally challenged, and whether LPC could balance the merits of ICL need to build a certain number of units against the detriment such project would cause to the historic district.

Mr. Sarinsky, Asst Corp. Counsel for the City representing the LPC, first distinguished between a landmark district and property and stated that in the former the LPC simply had to determine whether the work was appropriate for the context of the landmark district; there was no blanket rule against work on the site or work next to the mansion. He stated that Landmarks takes the applications as they are proposed and that it is not within its province to suggest other locations on which to build; "Either it is appropriate or it is not" (Id. at 12). Nor was Landmarks supposed to review the merits of the placement of assisted living and affordable housing which was separate and apart from Landmarks domain of looking "aesthetics and the architectural design standards, which is a question of taste...(I)t is a question of judgment and aesthetics and Landmarks reviewed it as they would any other application." (Id. at 13).

ICL then stated that it would be irreparably harmed were the court to continue the TRO since private equity lenders and the city decided they would not close until the issue was resolved. Curiously, Sarinsky then volunteered to discuss the financial aspect of the program and the need to protect the complex financing of the project. Of the $41 million committed in financing, the City was to give $7.9 million. These financial commitments were contingent on the project moving forward "under certain conditions, interest rates, construction costs....these were all considerations that were made " (Id. at 23). Sarinsky also noted that ICL "is a non-profit organization who cannot just reach into their pocket like some other developers such that if construction was delayed it would likely increase the cost of the construction." (Id. at 23-24).

In response to the court's query as to whether petitioners were concerned about the mass of buildings on both Brooklyn Avenue and St. Marks Place sides, Philip Solomon, attorney for petitioners, stressed that his major concern was that the building, even after being set back on St. Marks Place, would decrease the garden by approximately 60 percent to two-thirds (Tr. 26, 29). No party contested that the garden is not open to the public although ICL stated that they occasionally allowed community organizations to use the garden for meetings The City and ICL argued that the Designation Report hardly discussed the garden and that it had no historical significance (Tr. 30-31) to which the Court replied "They designate the whole area. So whatever is within there, is within there. The garden - and supposedly it enhances this building, which is part of the essence of the whole neighborhood, it has to be taken into consideration."

The court then requested petitioners to delineate on what legal basis the Court could reverse the granting of the COA. Solomon stated that the COA was not issued properly because the LPC "didn't seem to advocate the very thing they were created to do, which is to preserve the architectural aesthetics and beauty of the community," ( Tr. 32-33) and that it was clear from the transcripts that when the LPC actually voted for the COA, they deferred almost entirely to ICL's architects (Tr. 33). Solomon pointed to the Chair's comment that "we have to get ICL's ...program going." (Tr. 33). Solomon also stated that while the Chair person was concerned about the entrance to the new building, she never discussed the diminution of the garden.

The court inquired of the City whether the LPC debated how much of the garden to preserve within the context of ICL's claim that it needed to build 70 units to make the financing feasible, to which Mr. Sarinsky responded "no" (Tr. 44). After ICL asserted that there had to be a certain ratio of supportive housing to affordable housing and a certain number of units to make the financing work, Mr. Sarinsky interjected that "the allocation of [funding] credits is contingent on the number of units that basically you get credit on a per unit basis. The fewer the units, you get fewer credits, and there wouldn't be sufficient financing" (Tr. 11/28 at 43-44). Further, Mr. Sarinsky commented, while addressing the equity and irreparable harm components of granting a TRO, that "I think it would a real shame if, you know, this project for affordable housing was "⁶ (Tr. 11/28 at 51).

6 Sarinsky never completed this sentence.

The court found it curious that the LPC was speaking to concerns unrelated to the aesthetical considerations of the COA. Rather, these concerns related to the potential harm that ICL, but not the LPC would suffer were the TRO to be continued. In fact, Mrs. Seaton, counsel for ICL, conceded that while ICL's mission to build low income housing was relevant to the court's consideration of the TRO, the court should not concern itself with what ICL was trying to achieve once the court got to the merits of granting the COA (Tr. 34). The Court noted that while ICL's arguments as to how financing would collapse were relevant to the court's consideration of whether to extend the TRO, they were irrelevant to the Court's ultimate decision on the merits of the Article 78 proceeding. Petitioners contended that if construction commenced all over the garden, it could never be revived; hence both sides argued irreparable harm.

The court thereupon found that the irreparable harm claimed by petitioners outweighed that claimed by ICL since once excavation work started in the garden and a foundation was laid and the building commenced, this work would never be dismantled and the mansion would no longer be defined by the garden. "To dismantle something after you have expended all of this money to build it would be even more" prejudicial to you than not building it. (Tr. 11/28/17 at 42, 52). After balancing the equities and considering the status quo, the Court narrowed the scope of the TRO to restrict any demolition or construction on the garden running north from the eastern side of the Mansion facing St. Mark Avenue. The Court lifted the TRO to permit ICL to demolish the two existing buildings and commence building on the Brooklyn Avenue side of the mansion, as "that is enough guarantee [for ICL] to go back to its investors and start the process" (Tr. 59). The Court requested the parties to try to resolve the matter by reconfiguring the buildings so that a greater percentage of the garden could remain intact thus leaving the mansion as a free standing entity.

At a second hearing held on December 21, 2017, the Court ascertained that discussions about protecting more of the garden were not held as ICL's architects, engineers and financiers indicated that the project has to remain as is, and Landmark's position was that their approval must stand. The court then queried why HPD had represented that there had to be about 75 units when the record indicated that the project was feasible as long as it contained 50 units. Counsel for ICL -Bost Seaton - replied that although HPD's minimum was 50 units, they preferred to have a higher amount to make the financing successful. Furthermore, the placement of affordable housing at the site added another financial consideration since a certain amount of units were necessary for ICL to receive rent payments and for the operations of on site services for the tenants (Tr. 3).

Seaton then stated that another financial consideration was ICL's allocation of five million dollars to restoring the mansion. The Court then inquired whether if ICL could spend less money on the mansion by scaling back its restoration, it could downscale the St. Marks Avenue building to include fewer units. Seaton responded that it could be feasible had that proposal been originally presented to Landmarks. She added that hypothetically speaking, a number of different plans could have been presented to LPC that may or may not been approved but that since LPC had approved a specific plan, any reconfiguration of the units would have to be assessed anew by the LPC (Tr. 5). Mr. Sarinsky added that ICL could not independently take money away from the restoration of the mansion since the granting of COA was based in part upon the restoration of the mansion.

The court again posited that Landmarks was not in the business of deciding whether it liked a certain city proposal, such as having affordable housing in Crown Heights, in determining whether to grant a COA pursuant to §§25-301 and 307. Mr Sarinsky agreed, but noted that Landmarks was not an "anti-development organization." (Tr. 9). Mr. Sarinsky added that its mission was to determine whether a proposed change within a historic district was appropriate and whether it comported with the nature and existence of the historic district. When the Court again referred to the commissioners' statements that they wanted to see the project done, Sarinsky replied that these were a few ad hoc comments in about 100 pages of transcript which laid out about 20 reasons, all of which dealt with aesthetics and historical design and deep setbacks, for LPC's approval of the project. (Tr. 9-10).

The court then inquired again as to the significance of the garden which appeared to be unique and historical, and which defined the free standing nature of the garden. Sarinsky repeated that the garden was a very minor component of the historic designation report and was barely mentioned. When asked why the greenery surrounding the mansion and the new addition contained in ICL's revised configuration were not sufficient, Solomon responded: "The argument is the size of the garden...how the mansion breathes, that's obviously diminished based upon the fact that you have this really large structure that has been erected right in the middle of the garden." He continued that the addition of green space to the back of building would have no effect on how the mansion is perceived from St. Marks Avenue. He stated: "All you can see is a foreshortening of the garden" (Tr 24). Solomon added that petitioners were concerned about the effects of foreshortening both as to the garden and the mansion; the effect was intertwined because the "space itself creates this statue[sic] for the mansion. Instead, now you have this very large four and half story building right in the middle of the garden" (Tr. 25).

The Court then inquired as to why LPC did not really discuss the civic associations concern about the uniqueness of the garden and how it framed the mansion into a freestanding entity (Tr. 39).Sarinsky pointed to page 16 of the LPC 3/22 hearing where he believed that Commissioner Goldblum had discussed the impact of the garden. However, page 16 contained Mr. Woelfling's testimony about the small scale residential context along St. Marks Avenue and the "notable feature which is a front yard setback. It's a very character defining element to the block." Sarinsky added that the LPC did take the community's vehement opposition into account when the LPC got rid of the entrance on St. Marks Ave and found that the deep set back - 61 feet from St. Marks Ave - would essentially preserve the view of the mansion. (Tr. 48).

Counsel for the City pointed to the thoroughness of the commission's consideration of the proposal's encroachment into the garden area, stating that "the record is full of actual deliberations by the Commissioners on this very question. Is it — can we set that more, does it appear in the building? Petitioners would have an historically free-standing building that must continue to be so. What the law requires is if there's an addition, it must be appropriate... And the Commission can look at this and see if it's back enough and it has the appearance from various views, that's an appropriate addition [Mr. Goldblum] gives a very lengthy discussion about the setback and about whether the design of the buildings, that setback if it's appropriate." (Tr. 12/21 at 52-53). He proffered that any focus on these stray comments by Commissioners that they wanted to see the project done constituted "cherry picking" and should be viewed in light of the entire record and transcript as whole. (Tr. 12/21 at 42-43).

Finally, the Court inquired how it was to assess the fact that the Plan gave more green space on Brooklyn Avenue and less free space on St. Marks Avenue. Ms. Harris, counsel for ICL, responded that the plan gave Brooklyn Ave a sense of more transparency looking ahead and that the LPC is able to weigh these factors. The Court then declared "So basically what happens is that the Landmarks Commission is deciding that this mansion was never really free-standing because of the 1930s addition. So. If we give a little more free-standing illusion on one side and take it away on the other, it's still what it is." (Tr. 45). Mr Sarinsky agreed that was a good summary of the City's position.

Findings of Fact Concerning How the Addition Will Affect the Garden and Mansion

By Supplemental affidavit dated December 8, 2017, Mr Woelfling noted that although under §25-304(a) of the Code, Landmarks did not have authority to regulate or impose zoning limitations on the project - the building mass or its open spaces - ICL nevertheless considered the neighborhood's landmark designation, character and scale so that the project would "holistically" fit into the historic district. ICL self imposed a decision to only utilize 85 % of the available zoning floor area so as to not overwhelm the mansion; utilizing all the permitted floor area could have made the building two stories higher on St. Marks Ave. He also asserted the ICL offered to exceed LPC's requirements for the restoration of the mansion. Finally, included in the scheme approved by LPC was "retaining and maximizing the open space to the east of the mansion and maintaining the 30 foot required rear yard for the building expansion."⁷

7 Although neither LPC nor this Court has the authority to change zoning requirements, this Court does not understand whether the 30 foot required rear yard behind the new addition applies to both the St. Marks and Brooklyn Ave buildings or only the former (See Exhibit A annexed to Woelfling affidavit).

Woelfling asserted that a comparison of the Existing Site Plan to the LPC Approved Site Plan revealed that the "formal garden" had only been decreased from 43% to 40% of the lot area or approximately a 700 square foot reduction. However, this comparison is inapt since Woelfling changed the definition of the "formal garden area" from the Existing to the LPC Approved Site Plans and failed to take account of how these rhetorical changes affected the ability to view the mansion in the round. (See Exhibit "A" annexed to supplemental Woelfling affidavit).

In the existing Site Plan, the "formal garden area" is depicted as the entire green portion of the lot adjoining the full east side of the mansion and continuing past the existing three story dorm for a total area of 10, 051 square feet. The existing garden frames the entire eastern side of the mansion as a free standing building and then extends back to the northern property line for a total length of approximately 150.5 feet. In the "Site Plan Approved by LPC" ICL reconfigures and redefines the formal garden into three separate areas: a "front garden," "side garden" and "rear garden," all of which total 9,637 square feet. The proposed "front garden" is 4,614 square feet and consists of a portion of what previously was the full formal garden on the east side of the building; its depth from St. Marks Avenue to the proposed new building is now 60 feet as opposed to 150 feet or a decrease of 60%. The area of the existing formal garden on the east side of the mansion would be reduced from 10,051 square feet to 4614 sq. feet - a decrease of 54.1%. In fact, during oral arguments, petitioner asserted that the proposed building would consume "approximately two-thirds of the garden" (Tr. 26) and ICL confirmed that it would be "about sixty percent smaller" (Tr. At 29). The proposed "side garden," in measuring 2,634 sq. ft., would lie on the Brooklyn Avenue side of the mansion and the proposed "rear garden," measuring 2,119 sq. ft., would occupy the northern-most portion of the original formal garden and under the proposed plan would be blocked from view on St. Marks Place by the approved L shape addition.

Based upon its review of the testimony and exhibits, this Court concludes that ICL's plans to create two new gardens - the side and rear gardens - are irrelevant to its determination. The side garden is visible from Brooklyn Ave but out of view from nearly every vantage point on St. Marks Ave since it commences half way up Brooklyn Avenue from St. Marks Ave. Furthermore, it does not actually add more greenery to the plot since the Original Plan included a swath of greenery along Brooklyn Ave from St. Marks Ave to the end of the property line.⁸ Similarly, the proposed building would totally obstruct any public view of the rear garden. Id. The court finds that the Revised Plan's rendering of the new building on St. Marks Ave (Exh. J" to City's Answer) shows a greater continuity between the mansion and new building as the outside wrought iron fence along St Marks Avenue is now continuous and allows the greenery to be viewed as an actual garden. However, the mansion still does not appear to be free standing.

8 Neither the Existing nor the Proposed Plan even claim that the "greenery or earth" effacing the western part of the mansion and curbing over to Brooklyn Avenue is a "formal garden." (See Exhibits "C" "D" and "E" to the Woelfling Aff.) The existing plan included as "greenery or earth" approximately 3031 square feet running from St. Marks Ave to the end of the property line on Brooklyn Avenue, whereas the Approved Plan cuts the "greenery or earth" by one half and commences the second formal garden at the midpoint of Brooklyn Ave.

The "front garden" is the only one that impacts the now existing formal garden that effaces St. Marks Ave and defines the Mansion as a free standing building. As configured in the revised plan that was approved by LPC, this garden is less than half of its original size. ICL's justification for reducing the formal garden, which apparently was adopted by LPC - that the garden was in a "disjointed state" and hardly mentioned in the Designation report, and that ICL would restore the proposed smaller garden and landscape it to a more aesthetically pleasing design- is somewhat disingenuous as ICL did nothing to clean or repair or landscape the garden since its ownership of the lot.

Factual Findings as to Factors LPC Considered in Granting the COA

During arguments before the Court, petitioners refined their argument to state that LPC was "entirely deferential to ICL's project. They considered the financial strength, the number of units and it seemed like lip service to the community" (12/21 at 6). Petitioners also argued that LPC should not have considered the economic arguments of ICL (Id). Both counsels for the City replied that the random comments of the chairpersons did not amount to a consideration of economic and fiscal constraints propounded by the ICL, and that the court and petitioners were "cherry picking" by focusing on those comments.

Mr. Woelfling, admitted at the LPC hearing that ICL had some flexibility in site planning, but that if they pushed the building all the way back to what would be permitted by the zoning resolution, it would become a "forgotten end space," a space you could not use (Tr. 28-29). In a subsequent affidavit, Woelfling stated that ICL had modified the plan to reduce the number of units from 73 to 67, which included 40 units of supportive housing and 26 units of affordable housing, although the actual proposal by LPC had a total count of 70 units accomplished through interior adjustments.He testified that the economies of scale to make supportive housing economically viable required a minimum of 50 units in a supportive housing residence (60% supportive housing units and 40% affordable housing units) but that "from a development and financing, and operations standpoint" a minimum scale of around 70 units was necessary. Finally, attorney Seaton admitted that hypothetically speaking, a number of different plans could have been presented to LPC that could have salvaged more of the garden but that since LPC had approved a specific plan, any reconfiguration of the units would have to be assessed anew by the LPC (Tr. 5).

To reiterate: Chairman Goldblum stated that this project was a "gauntlet thrown down to us to figure out how to make ...this work because the mission...that this institution has is incredibly important. The need is very, very, very significant and I think we should do our utmost to try to make it work." (Tr. 54-55)Chairwoman Srinivasan stated that "I think we as a commission should try and find ways to still allow them that program." (Tr. 62). On April 22, 2016, Commissioner Goldblum commented that the project was an adaptive reuse of an individual house to do something very important and very unfortunately rare, which is to provide some very highly needed low-income housing. So I think our ability to work with them is very, very important and I think a positive outcome for this is as important for the city" (Tr. 8). Chair Srinivasan then stated that the proposal was about "striking a balance" between a historic district with a mansion that did not have an individual designation but was a "prominent building" against the fact that the ICL had occupied the mansion for several decades and they were providing affordable housing which had its "own realities" including the need to have a certain number of units to make it viable (Tr. 10).

Mr. Sarinsky admitted to the Court that LPC did not debate much about how much of the garden to preserve after acceding to ICL's claim that it needed to build 70 units to make the financing feasible, to which Mr. Sarinsky responded "no" (Tr. 44). He was also well versed in the financing constraints facing ICL and stated: "The allocation of [funding] credits is contingent on the number of units that basically you get credit on a per unit basis. The fewer the units, you get fewer credits, and there wouldn't be sufficient financing." (Tr. 11/28 at 43-44). Further, Mr. Sarinsky commented, while addressing the equity and irreparable harm components of granting a TRO, that "I think it would a real shame if, you know, this project for affordable housing was " (Tr. 11/28 at 51).

The Court finds that based upon the Commissioners' comments at the two LPC hearings, as well as arguments made before this Court, that the Commissioners lauded the social and economic values espoused by the ICL in expanding its mission at the site by creating 70 additional units of housing for both low income and developmentally challenged individuals. LPC also acceded to ICL's position that the rehabilitation of the mansion and current extension was not feasible from a development and operating services standpoint, and that ICL had to build at least 70 units in order to obtain the city and private financing, and that it had to build the addition as proposed, even though it would drastically cut into the garden. Although ICL's attorney admitted that there were many hypothetical plans that could have reduced the number of units and left more of the garden intact, LPC never pressed ICL on that subject. It is clear that LPC wanted the project to be done and that they would not interfere with the afore stated economic imperatives presented by ICL. The LPC therefore accepted the various tweaks to the project that ICL proposed after the March 22nd hearing and considered the aforementioned factors in issuing the COA.

Legal Analysis

In response to the loss of a number of its more significant buildings, including the original Pennsylvania Station, New York City first adopted its first Landmarks Preservation Law ("LL") in 1965. See Admin. Code, ch. 8-A, § 205-1.0 et seq. (now Admin. Code §25-301 added by Chap. 907, 1985 §1). The City acted from the conviction that its "standing ... as a world-wide tourist center and world capital of business, culture and government would be threatened if legislation were not enacted to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character." § 205-1.0 (a); Penn. Central Transp. Co..v. NYC, 438 U.S. 104, 109, 57 L. Ed 2d 631 (1978); Teachers Ins. & Annuity Assn. v. City of NY, 82 NY2d 35,41 (1993). Indeed, the City Council observed that: "many improvements representing the finest architectural products of distinct periods in the [city's] history have been uprooted, notwithstanding the feasibility of preserving and continuing the use of such improvements 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 . In addition, distinct areas may be similarly uprooted or may have their distinctiveness destroyed, although the preservation thereof may be both feasible and desirable . N.Y.C. Code § 25-301a.. See, Bd. of Managers of Soho Intl. Arts Condo v. City of NY, 2004 U.S. Dist. LEXIS 17807 (S.D.NY 2004).

The LL declares that as a matter of public policy, the "protection, enhancement, perpetuation and use of improvement and landscape features of special character or special historical or aesthetic interest or value is a public necessity." §25-301(b). Its purposes include the "foster[ing of] civic pride in the beauty and noble accomplishments of the past,... protect[ing] and enhanc[ing] the city's attractions to tourists and visitors,... and promot[ing] the use of historic districts, landmarks ... for the education, pleasure and welfare of the people of the city." §§25-301 (b).

To achieve these ends, power is vested in the Commission to designate historic districts and their boundaries. Code, §25-303a(4); N.Y.C. Charter §3020(6). Once an area is designated, the LPC may regulate and protect any "improvements" which is defined as any "work of art or other object constituting a physical betterment or real property." Code, §25-302. See, Bd. Of Managers of Soho, supra at 28. In determining whether to designate an area, the LPC must ascertain whether the area contains improvements which have "a special character or special historical or aesthetic interest of value," "represent one or more periods of architectures typical of one or more eras and cause such area, by reason of such factors, to constitute a distinct section of the city." Code, §25-302(h). No person may alter, demolish, construct or reconstruct any improvement in an historic district unless the commission has issued a permit, which is generally granted through a certificate of appropriateness ("COA"). Code §25-305. See, Bd. Of Managers of Soho, supra at 28-29. The importance of improvements in a historical district was aptly noted in Soc'y for Ethical Culture in City of NY v. Spatt, 68 AD2d 112, 117 (1st Dept. 1979), aff'd 51 NY2d 449, where the court stated that "if only those buildings of 'extraordinary distinction' were preserved, much of what is rare and precious in our architectural and historical heritage would soon disappear."

Landmarks Law §25-307 is "triggered" whenever an applicant seeks to "construct, reconstruct, alter or diminish any improvement ...in an historic district" §25-307(a). See, Mtr. Of Save Gansevoort, LLC v. City of New York, 2017 NY Slip Op. 30563U, 2017 NY Misc LEXIS 1033 (Sup. Ct., NY Co. 2017). When making a determination on an application to grant a COA to construct, reconstruct, alter or demolish an improvement in an historic district, the commission shall consider: "(a) the effect of the proposed work in creating, changing, destroying or affecting the exterior architectural features of the improvement upon which such work is to be done, and (b) the relationship between the results of such work and the exterior architectural features of other, neighboring improvements in such district." §25-307(b)(1).

Section 307(b)(2) sets forth nine factors that the LPC shall consider in granting a COA in a landmark district, and provides that "[i]n appraising such effects and relationship, the commission shall consider, in addition to any other pertinent matters, the factors of aesthetic, historical and architectural values and significance, architectural style, design, arrangement, texture, material and color." See, Mtr. Of Gansevoort, LLC v. City of NY, 158 AD3d 483, 485 (1st Dept. 2018); Mtr. Of Mattone v. N.Y.C. Landmarks Pres. Comm., 2004 NY Slip Op. 51367(U), 5 Misc 3d 1013A (Sup. Ct. NY Co. 2004). Before issuing a COA the LPC must decide whether "the proposed work effectuates the purposes of the Landmarks Preservation Law." 67 Vestry Tenants Assn., 172 Misc 2d 214, 218 (Sup. Ct., NY Co. 1997). The decision to grant the COA is thus "limited to the appropriateness of the proposed buildings' architectural features and narrowly circumscribed by the architectural, historic, aesthetic and other cultural criteria specifically stated in the Landmarks law." Citineighbors Coalition of Historic Carnegie Hill v. NYC Landmarks Preservation Committee, 306 AD2d 113 (1st Dept. 2003); Mtr. Of Ganservoort, supra, 2017 NY Misc. LEXIS 1033 at 20.

Furthermore, pursuant to §25-307(b)(3), all determinations of the LPC are constrained by the provisions of § 25-304. Subdivision (a) of Section 304 sets forth that nothing in the chapter shall be construed as authorizing the commission, in acting with respect to a historic district, to regulate or limit the height and bulk of buildings or regulate and determine the area of yards and other open spaces. Subdivision (b) of this section permits the LPC to impose, with respect to the construction, reconstruction, alteration, demolition or use of such improvement or landscape feature, "regulations, limitations, determinations or conditions which are more restrictive" than those prescribed or made by other applicable provisions of law. This section means that the LPC "has the authority to review the actions of another agency such as the Buildings Department and impose limitations on the findings of that agency if it would adversely affect a landmark."

In an Article 78 challenge to LPC's determination, as in all Article 78 proceedings, the applicable standard of review is whether the administrative decision was made in violation of lawful procedure; affected by an error of law; or arbitrary and capricious or an abuse of discretion. CPLR 7803(3); Committee to Save the Beacon Theater v. City of New York, 146 AD2d 397, 405(1st Dept. 1989) ("Beacon"); Mtr. Of Save Gansevoort, LLC. supra. A court can only ask whether the determination is rational and not an abuse of discretion, or a violation of the agency's legal duty. Mtr. Of Save Gansevoort, LLC, supra, 2017 NY Misc. LEXIS 1033 at 20. An agency abuses its exercise of discretion if it lacks a rational basis in its administrative orders. Save America's Clocks Inc v City of NY, 52 Misc 3d 282, 294 (Sup. Ct., NY co. 2016) aff'd 157 AD3d 133 (1st Dept. 133). A court may overturn an administrative action where it is "taken without sound basis in reason" or "without regard to the facts." Mtr. Of Wooley v. NY State Dept. Of Correctional Servs., 15 NY3d 275, 280 (2010), citing Mtr of Pell v. Bd. Of Educ, U.F.S.D. No.1, 34 NY2d 222, 231(1974); Mosley v. N.Y.C. Landmarks Preserv, Comm'n, 2005 NY Slip Op 30504U, 2005 NY Misc LEXIS 8493 at 12 (Sup. Ct. NY Co. 2005), but cannot overturn agency decisions because it believes that a better solution could be obtained. Peconic Bay Broadcasting Corp. v. Bd. f of App., 99 A.D. 2d 773, 774 (2d Dept. 1984). See, Mtr. Of Save Gansevooort, supra, 2017 NY Misc. LEXIS 1033 at 20.

An agency decision is arbitrary and capricious when the agency has relied upon factors which the legislature had not intended it to consider, entirely failed to consider an important aspect of the problem, "offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Kentucky Riverkeeper, Inc. v. Rowlette, 714 F.3d 402, 407 (6th Cir. 2013) (quoting Natl. Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 168 L. Ed. 2d 467 (2007). See, Ohio Coal Assn. v. Perez, 192 F. Supp. 3d 882, 908 (Dist. Ct. Ohio, 2016); Mtr. Of Caspian Realty, Inc. v. Zoning Bd. Of Appeals, Town of Greenburgh, 68 AD3d 62, 70-71 ( 2d Dept. 2009).

Petitioners do not challenge, nor does this court have the authority to second guess the LPC's determinations as to the aesthetic improvements or modifications to the exterior of the mansion, or the design of the new building, including the new glass corridor that connects the mansion to the new building or the reconfiguration of the entrance to the new building. Nor can the Court substitute its opinion for that of LPC as to whether the setting back the half floor after the fourth floor on the St. Marks Place creates a better viewing of the mansion in the round than in the original plan.

Petitioners tacitly admit that they are not challenging the increased massing on Brooklyn Avenue but rather the addition of a four and a half story on the east side of the mansion fronting St. Marks Avenue, which will eliminate approximately 60 percent of the garden effacing the eastern wall of the mansion fronting St. Marks Avenue and running north, and the elimination of the free standing nature of the Mansion. The City and ICL consistently argued that the garden was hardly mentioned in, and was not a factor in the designation of CHN as a historic district, implying that it should not be a significant factor in their consideration, especially because it was in a state of disrepair. Neither the City nor ICL papers address how the addition of the new building, some 60 feet from the St. Marks Ave property line, would actually affect the viewing of the mansion In fact, as set forth above, the LPC never really discussed the potential diminution of the garden during the hearings. Mr. Sarinsky admitted to the Court that LPC did not debate how much of the garden to preserve after acceding to ICL's claim that it needed to build 70 units to make the financing feasible.

This Court disagrees with the COA's statement that the "deep setback will preserve the presence of the historic garden context of the house, the lot and the historic green space." Rather, it agrees with CNHD's argument that the "land is actually a "character defining feature of the mansion. Mansions are inherently different from other buildings in the district...as they are detached and the open spaces of the grounds are a significant feature of their context." The court also credits Hilbertz' statement that the garden not merely a "plot" or an "afterthought," but rather was integral to the architectural design of the property and "literally defines the house as a free standing mansion, creating the offset needed for such: it is the space that defines the form." The court finds that the garden is integral to the architectural design of the property and defines its open and free standing nature. Despite ICL's reduction of the building by one story and its set back of the top half floor, and its reconfiguration of the entrance to the new building, this court finds based upon its examination of ICL's site plans, that the size and positioning of the new building decimates the depth of the garden and hence negates the free standing nature of the mansion.

The court finds that it was arbitrary for LPC to downplay the importance of the original formal garden as a component which defined the free standing nature of the mansion from the St. Marks Ave vantage point and treat it as if it were some step child that just serendipitously arose. The fact that the LPC requested that ICL eliminate the second entrance from St. Marks Place, and hence the pathway that cut through the continuous garden in front of the mansion does not address the decrease of depth of the garden by 60 percent.

The LPC obviously was aware that the opposition to the Plan focused on the fact that the reduction of the garden, as well as the massing of the proposed building fronting St. Marks Ave would compromise the free standing nature of the Mansion. The Dattner architects' April 12, 2016 submission to LPC opined that the entrance should remain on St. Marks Ave due to the fact that "the Mansion's main entrance and orientation relates to St Marks Avenue." While the Chairperson found that the addition effacing Brooklyn Ave was justified because the 1930s additions somewhat "compromised the freestanding nature of the mansion" on Brooklyn Ave and that the space was "already cluttered," the COA expanded this justification by generically finding that the mansion had "substantial additions present at the site for longer than the mansion was freestanding, therefore the proposed building is in keeping with this context." This language appears to find that proposed addition on St. Marks Avenue is justified because the preexisting additions already compromised the mansion as a whole. In fact, during oral arguments, counsels for both ICL and the City argued that it was entirely proper for LPC to grant the COA because the greater amount of green space allocated to the Brooklyn Avenue side of the mansion in the Plan compensated for the decrease of greenery or formal garden on the St Marks Side.

The Court finds that it was arbitrary for the LPC to use the fact that existing additions were built in the back of the mansion to justify the elimination of the free standing nature of the mansion on the St. Marks Ave side. The Existing Site Plan (Exh. A to Woelfling Aff) reveals that the 1930s additions commenced at the midpoint of Brooklyn Avenue between St Marks Ave and the northern property line and that their eastern borders were flush with the eastern border of the mansion and did not protrude into the formal garden bordering the eastern side of Mansion. These additions therefore had no effect upon, and did not detract from viewing the Mansion as a free standing building from the St Marks Ave vantage point. In fact, the Existing Site Plan shows that formal garden running on the eastern side of the Mansion from St. Marks Ave to the northern property line, with no obstruction, framed the Mansion and the 1930s addition as a free standing building. By not analyzing how the viewing of the Mansion from St. Marks Ave would be affected by the 60 percent diminution of the garden caused by the proposed addition, the LPC failed to consider an "important aspect of the problem" before issuing the COA and hence acted in an arbitrary manner.

The LPC Considered Factors Outside of its Jurisdiction

Section 307(b)(2) sets forth nine factors that the LPC shall consider in granting a COA in a landmark district, and provides that "In appraising such effects and relationship, the commission shall consider, in addition to any other pertinent matters, the factors of aesthetic, historical and architectural values and significance, architectural style, design, arrangement, texture, material and color." This Court must therefore determine whether LPC acted within the scope of its powers as defined by the LL when it predetermined that the job must get done and considered the economic and fiscal realities governing the project in determining whether the granting of the COA would change, destroy or affect the exterior architectural features of the Mansion and of the historical district.

In fact, after two dates of oral argument, the court asked the parties to submit further briefs on five issues, the fourth of which constitutes the crux of this case: "It is clear that the LPC is mandated, in considering an application for a COA, to 'determine whether the proposed work will be appropriate for and consistent with the effectuation of the purposes of this chapter (Landmarks Law §25- 307(a) ), i.e. to protect, enhance and perpetuate the use of improvements of special historical or aesthetic interest...(§25-301(b)). Given this mission, under what guidelines is the LPC permitted to consider the financial and good government arguments of a developer in support of its proposed project. Is it consistent with this statutory framework for the LPC to even offer an opinion that it wants to see the project done?"

The LPC submitted an affidavit from Sarah Carroll, the Executive Director of the LPC. She stated that Admin. Code §25-313, which governs the LPC's public hearings, recognizes that the LPC is an expert agency and that the Commissioners are not "confined to consideration of the facts, views, testimony or evidence submitted at such hearing." §25-313(b). With specific regard to the aforementioned question, she stated that while the LL does not prohibit the LPC from considering cost, "such considerations are secondary." She gave as an example the fact that for many years there was no domestic source for replacement brownstone so the Commissioner allowed a substitute material to be used to repair brownstone, the point being that the LPC determined that "it would be unreasonable to require homeowners to have to pay to import brownstone" from foreign countries.

A Court "must defer to the agency's interpretation of its own regulations unless the text is unambiguous or the agency's interpretation is 'plainly erroneous or inconsistent with the regulation.'" InterModal Techs., Inc. v. Peters, 549 F.3d 1029, 1031 (6th Cir. 2008). In ascertaining what degree of deference the court should accord to an administrative agency's interpretation of a statute, the court must focus on "the extent to which the interpretation relies upon the special competence the agency is presumed to have developed in its administration of the statute." In re Claim of Gruber, 89 NY2d 225, 231 (1996); Roberts v. Tishman Speyer Props., L.P. 62 AD3d 71, 80 (1st Dept. 2009) citing to Mtr. of Teachers Ins. & Annuity, Assn. of Am. v City of NY, 82 NY2d 35, 41 (1993). Where the interpretation of a statute or its application involves specialized "knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom," the courts should defer to the administrative agency's interpretation unless irrational or unreasonable. KSLM-Columbus Apts., Inc. v. NY State Div. of Hous. & Cmty. Renewal, 5 NY3d 303, 312 (2005); Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 (1980); Mtr. Of Raganella v. NYC Civil Serv. Comm., 66 AD3d 441, 445 (1st Dept. 2009). So too, deference is in order when the language used in the statute is special or technical and does not consist of common words of "clear import." Mtr. Of NY State Assn. Of Life Underwriters v. NY State Banking Dept., 83 NY2d 353, 360 (1994); Mtr. Of Raganella, supra, 66 AD3d at 446.

Because the LPC is a "body of historical and architectural experts," significant deference should be given to its decisions regarding landmarks. Stahl York Ave. Co., LLC v. City of New York, 76 AD3d 290, 295 (1st Dept. 2010). See, Beacon, supra, 146 AD2d at 405; Mosley v. N.Y.C. Landmarks Pres. Comm, 2005 NY Slip Op 30504(U), 2005 NY Misc LEXIS 8493 (Sup Ct. NY Co. 2005); 67 Vestry Tenants Assn. v. Raab, 172 Misc 3d 214, 218 (Sup. Ct., NY Co. 1997). The LPC's interpretation of the Landmarks Law therefore must be accepted if not unreasonable. TIAA v. City, supra 82 NY2d at 42. The LPC's determination to grant a COA is "limited to the appropriateness of the proposed buildings' architectural features and narrowly circumscribed by the architectural, historic, aesthetic and other cultural criteria specifically stated in the Landmarks law." Citineighbors Coalition of Historic Carnegie Hill v. NYC Landmarks Preservation Committee, 306 AD2d 113 (1st Dept. 2003); Mtr. Of Ganservoort, supra, 2017 NY Misc. LEXIS 1033 at 20 aff'd 158 AD3d 483 (1st Dept. 2018). Therefore, deference must be accorded to the LPC's expertise where the historic and or aesthetic interests of the buildings is implicated. Mtr. Of Ganservoort, supra, 158 AD3d at 486.

This is line with another precept of administrative law: that the enabling statute or legislation of the administrative agency "provides the exclusive test" for the agency's granting or denying a permit. See. Mtr. Of Capian Realty, Inc. V. Zoning Bd. Of Appeals of Town of Greenburgh, 17 Misc 3d 694, 702 (Sup. Ct., Westchester Co. 2007) (Zoning board may only exercise authority properly delegated to it by zoning law and since Town Law §267(b)(3) does not provide a basis for denying a request for a variance due to an applicant's misrepresentations, such misrepresentation is not a factor which may be considered by zoning board in deciding such an application). "An administrative agency, as a tribunal of limited jurisdiction, must act strictly within its statutory authority." Nizzardo v. State Traffic Comm'n, 259 Conn. 131, 155 (2000).

However, where an agency acts outside of its enabling legislation, or the "question is one of pure statutory analysis, dependent only on an accurate apprehension of legislative intent" there is little basis to rely upon the special competence or expertise of the agency. Mtr. Of TIAA, supra, 82 NY2d at 42; Mtr of Peyton v. N.Y.C. Bd. Of Standards & Appeals, 166 AD3d 120,136 (1st Dept. 2018) citing to Kurcsics v Merchants Mut. Ins.,supra, 49 NY2d at 459.In these occasions, a court is free to "ascertain the proper interpretation from the statutory language and intent and may undertake the function of statutory interpretation without any deference to the agency's determination." Roberts v. Tishman Speyer Props.,supra, 62 AD3d at 80. See, Jackson v. Bank of America, N.A., 149 AD3d 815, 820 (2d Dept. 2017).

Ample precedent upholds the domain of the courts to ascertain the meaning of various provisions of the Landmarks Law, Zoning Resolution, or Rent Stabilization Law without deferring to the determinations of specialized agencies such as the LPC, Board of Standards and Appeals ("BSA") or the Department of Housing and Community Renewal ("DHCR"). See, Mtr. Of TIAA, supra, 82 NY2d at 42-44 (interpretation of phrase "customarily open or accessible to the public" contained in §25-302(a), the use and preservation of which LPC has authority to regulate, is a matter of pure legal interpretation that does not require judicial deference, including to the LPC's prior practice, since the statutory language is clear on its face); Save America's Clocks Inc. V. City of NY, 52 Misc 3d 282, 300 ( Sup. Ct., NY Co. 2016) aff'd 157 AD3d 133 (1st Dept. 2017) (interpretation of LL and specifically, of the authority of the LPC to regulate public access to the clock tower and mechanical operation of clock is purely a question of law and not area within LPC's expertise). See also, Toys "R" Us v. Silva, 89 NY2d 411 (1996) (determination of when a non conforming use is abandoned under the zoning ordinance is a pure legal question that does not mandate deference to the BSA); Peyton, supra, 166 AD3d at 136 (resolution of a dispute concerning the 2011 amendments to the zoning resolution's "open space" calculation, which always had been defined as being "accessible to and usable by all persons occupying dwelling unit..." was one of pure statutory reading and analysis and did not implicate BSA's knowledge and expertise re operational practices or evaluation of factual data; Mtr. Of Warner v. Town of Kent Zoning Bd. Of Appeals, 144 AD3d 814, 819-20 (2d Dept. 2016) (interpretation of Town Code enunciating a one year limit for completion of rebuilding of a destroyed non-conforming residence involves "a pure legal interpretation of statutory terms with no deference to the ZBA's interpretation"); Raganella, supra, 66 AD3d at 446 (no deference should be accorded to Civil Service Commission's ("CSC") determination since language in NYC Charter regarding the powers and duties of the commissioner were words of clear import and did not depend "in the slightest on the knowledge and understanding of the practices unique to CSC"); Roberts v. Tishman Speyers, supra . 62 AD3d at 80, 81 (interpretation of exception to high rent decontrol provisions contained in the Rent Stabilization Law (RSL") §26-504.1 et seq "requires no special competence, or understanding of underlying practices on the part of DCHR" so as to require deference to the agency's interpretation.)

The Court first notes that based upon the aforementioned precedent, the LPC is confined to considering the substantive nine factors listed in §25-307(b) in granting a COFA and that §25-313 is irrelevant as to the substantive factors that LPC must consider. As set forth previously, the LPC's determination to grant a COA is "limited to the appropriateness of the proposed buildings' architectural features and narrowly circumscribed by the architectural, historic, aesthetic and other cultural criteria specifically stated in the Landmarks law." Citineighbors Coalition of Historic Carnegie Hill v. NYC Landmarks Preservation Committee, 306 AD2d 113 (1st Dept. 2003); Mtr. Of Ganservoort, supra, 2017 NY Misc. LEXIS 1033 at 20 aff'd 158 AD3d 483 (1st Dept. 2018). In fact, in Mtr. Of Save Gansevoort, LLC, supra, a case relied upon by respondents, the First Department noted that the LPC "shall" consider the nine factors listed in 25-307(b)(2) in "determining whether an application to construct, reconstruct, alter or demolish any structure in an historic district should be granted." 158 AD3d at 485. "In sum, this means the Commission must consider the effect of the proposed work and the relationship between the results of the work and the exterior architectural features of neighboring improvements in the district." Id. See, Mtr.of Citineighbors Coalition of Historic Carnegie Hill,, supra 306 AD2d at 114.

On the other hand, Section 25-313 deals solely with the procedural aspects of how and when a hearing must be conducted on an overall basis. See, Mtr. Of Parkhouse v. Stringer, 55 AD3d 1(1st Dept. 2008) (pursuant to §25-313(b) the LPC conducts public hearings wherein the petitioner, an advocate for a community group, frequently testifies). At issue in Jacobs v. N.Y.C. Landmarks Preserv. Comm. 2017 NY Slip. Op. 51999(U), 2017 NY Misc. LEXIS 5397 at 8 (Sup. Ct., NY Co. 2017) was whether the LL required the LPC to hold another public hearing wherein the public could comment on the revised proposal before it granted Friends Seminary a COA. The court ruled that §25-313(B) leaves the determination as to whether the concerns raised are addressed adequately and satisfactorily to the LPC and not the public, citing to the very language set forth by Carroll: "The commission, in determinating any matter as to which any such hearing is held, shall not be confined to the facts, views...submitted at the hearing."

As such, it is this court's province, and not the LPC's, to determine whether Section 307(b)(2) permits the LPC to consider its desire to get the project done, the social merit of the project and the purported fiscal and economic constraints faced by ICL, in addition to the nine factors listed therein. To answer this question, the court must determine the meaning of the term" in addition to any other pertinent matters," within the context of Section 307(b)(2) which again, states that: "In appraising such effects and relationship, the commission shall consider, in addition to any other pertinent matters, the factors of aesthetic, historical and architectural values and significance, architectural style, design, arrangement, texture, material and color."

The primary consideration of the courts in interpreting a statute is to "ascertain and give effect to the intention of the Legislature." Riley v. County of Broome, 95 NY2d 455, 462 (2000); Roberts v. Tishman Speyer Props., supra, 62 AD3d at 81 citing to Statutes, §92(a). Therefore, even though the text or words of the statute itself is generally the best evidence of legislative intent, where adherence to the statute's "plain meaning" will produce an "unreasonable" result, "plainly at variance with the policy of the legislation as a whole," the courts will "follow that purpose rather than the literal words." Mtr. Of State of NY v. Kerry K, 157 AD3d 172, 183 (2d Dept. 2017) citing to NY State Psychiatric Assn., Inc v. NY State Dept. Of Health, 19 NY3d 17, 25-26 (2012). "Although statutes will ordinarily be accorded their plain meaning, it is well settled that courts should construe them to avoid objectionable, unreasonable or absurd consequences" Long v State of New York, 7 NY3d 269 (2006). Statutory provisions are to be construed so as to avoid conflict and preserve the intent of the legislature. Orange Co. Legislature v. Diana, 48 Misc 3d 278, 300-01 (Sup. Ct., Orange co. 2013). Statutes, §§ 97-98.

Where the language is ambiguous or inconclusive, the courts may turn to other principles of statutory interpretation to discern the intent of the legislature. Desrosiers v. Perry Ellis Menswear, LLC, 30 NY3d 488, 494 (2017); Mtr. Of Shannon, 25 NY3d 345, 351 (2015). The court may ascertain the proper interpretation from the legislative history. Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 286 (2009). See, People v Ballman, 15 NY3d 68, 72 (2010); Jackson v Bank of America, supra. 149 AD3d at 820. Since statutory construction is a "holistic endeavor," a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme." NCUA Bd. v. Nomura Home Equity Loan, Inc., 727 F.3d 1246, 1261 (10th Cir. 2013).

Another guiding principle is that "a statute or ordinance must be construed as a whole and that its various sections must be considered together and with reference to each other." Mtr of NY County Lawyers' Assn. v Bloomberg, 19 NY3d 712, 721 (2012); People v Mobil Oil Corp., 48 NY2d 192, 199(1979). See, East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 209 (2d Dept. 2009); Charlotte's Fancy Restaurant, Inc., v. NY Dept. Of Consumer Affairs, 121 AD2d 969, 971 (1st Dept. 1986). When weighing competing interpretations, courts should be mindful of the legislative purpose and consider "whether a particular reading of the statue will produce 'absurdities' or 'senseless results' not intended by' the legislature. In re Goodrich. 587 B.R. 829,841 (U.S. Bank Ct, Vt 2018). Thus, a statute should not only be read in the context of the entire statutory structure, but absurd results should be avoided. S.K.I Beer Corp. V Baltika Brewery, 443 F. Supp. 2d 313, 319 (E.D.NY 2006).

These principles were applied in Save America's Clocks in. V. City of NY, 52 Misc 3d 282 (Sup. Ct., NY Co. 2018) aff'd 157 AD3d 133 (1st Dept. 2017) where the courts looked to the legislative history to construe a provision of the LL and ultimately determine that the LPC's granting of a COA was in violation of the law. The case marked the first time an owner requested the LPC to convert an interior landmark into a private residence. LPC's decision to grant a COA would have permitted the building owner to make fundamental alterations to one of the few remaining 19th century non electrified mechanical clock towers in the city, including disconnecting the clock from its historical mechanism, electrifying the clock, and eliminating public access.

In granting the COA, the LPC relied upon its counsel's opinion that the LL did not grant the LPC the power to either require interior designated spaces to remain public or to require that the clock remain mechanical. The lower court first found that it was irrational and arbitrary for the LPC to issue a COA that would eliminate public access to the tower once the work was done since the defining characteristic of the clock tower suite at the time of its designation was that it was "customarily open or accessible to the public." Furthermore, excluding public access contravened the City Council's raison d'etre for enacting the LL in the first instance. 52 Misc 3d at 288-89 citing to Landmarks Law §25-301(b).Nor did the fact that the public did not presently have access to the clock tower suite, "whether through the present owner's efforts or not" warrant a different result. Id at 298. The lower court then found that the LPC's decision to permit conversion of the clock from a mechanical to electrical operation was based upon a mistake of law. 52 Misc 3d at 299-300.

The First Department affirmed Supreme Court's order but found that the authority of the LPC under the LL to regulate public access to the clock tower and mechanical operation of the clock were both "purely a question of law and not an area within the LPC"s expertise" 157 AD3d at 145 citing to Mtr of TIAA, supra , 82 NY2d at 42 (interpretation of phrase "customarily open to the public" as contained in LL §§25-302m was a question of law not requiring judicial deference). Specifically, "whether the clock mechanism is encompassed by the statutory term 'architectural feature' (LL§25-302(l)), the use and preservation of which the LPC has the authority to regulate, constitutes a question of Law" for the court to decide. 157 AD3d at 145.

The First Department found that LPC had the authority to regulate the clock mechanism for two reasons. First, such a result effectuates the statutory purposes of the LL, which was created "in response to the City's loss of a number of its more significant historic structures." 157 AD3d at 145. The Court then cited to the purposes of the LL as contained in §25-301(b), including the "protection, enhancement and perpetuation of such improvements which represent or reflect elements of the city's cultural...architectural history, and reiterated that in considering a COA, the LPC was required to "determine whether the proposed work would be appropriate for and consistent with the effectuation of the purposes of this chapter" Id at 146 citing to § 25-307(a). In determining an application for permission to alter or reconstruct an interior landmark, the LPC must consider the effects of the proposed work upon the protection of the architectural features which cause the interior landmark to possess a special character or historical or aesthetic interest or value (§25-307(e)). The Interior Designation Report noted that the clock and clock tower "are a rarity in NYC....The clock is one of the few remaining in New York which have not been electrified." The clock tower housed "the largest of the few purely mechanical tower clocks of its kind" in NYC and the only other clock in the world with a similar mechanism was Big Ben in London. 157 AD3d at 137. The court thus concluded that the "clock's mechanism represents an "element of the city's cultural and economic history and contributes to the building's historical value, and maintaining it would promote pride in the "accomplishments of the past" and advance the statutory purposes." 157 AD3d at 146.

Furthermore, the LL defines the term "interior architectural feature" to include various components, "including but not limited to—the type and style of all fixtures...(LL§302(1)). Since the LL permits the LPC to "apply or impose"with respect to the construction, reconstruction , alteration etc of a designated landmark, limitations or conditions which "are more restrictive" than those proscribed or made by other provisions the law (§ 25-304(b)), the LPC clearly has the authority to require the owner to run the clock by its functioning mechanism and not electricity. In fact, the court noted that "there would be little point in designating the machinery as a landmark without an expectation that it would continue to operate for as long as it can." Id at 147.

The First Department commented that the Commissioners had erroneously relied upon the opinion of its counsel, but that even if the Commissioners were relying on their own ideas of what constitutes "interior architectural features" under the LL, "there can hardly be a more obvious instances of statutory interpretation on which we owe not duty of deference to the LPC." Id. at 148. Finally, and of particular pertinence to the instant matter, the First Department noted that "objects once thought of as ordinary become increasing rare...Their physical existence and functioning take on new meaning as connections to our history. This majestic clock, and its historically significant functioning mechanism, is a perfect example of the very reason the [LL] exists, because the 'protection,...perpetuation , and use of [objects] of special historical or aesthetic interest or value is a public necessity" (§25-301 (b)) and the actions of the LPC are contrary to that purpose. Id at 148.

The uniqueness and pedigree of the mechanical clock in the bell tower is eerily similar to the uniqueness of the Russell Sage Mansion. The amorphous term" in addition to any other pertinent matters" must be analyzed within the context of the purpose and intent of the LL, which was created to protect, enhance and perpetuate unique historic structures, and the dictate in §25-307 that in considering an application for a COA, the LPC must determine whether the proposed work would be "appropriate for and consistent with the effectuation of the purposes of this chapter." It would be absurd and contrary to the raison d'etre of the LL to give the LPC carte blanche to consider, as pertinent to its determinations, factors that did not enhance, protect and perpetuate the improvements which were integral to the creation of the historic district. LPC's considerations of the social desirability of building more housing for the developmentally challenged and or the economic and fiscal constraints of developers of such projects falls outside the parameters of the purpose and intent of the LL.

Finally, just as the Interior Designation Report noted that the clock and clock tower "are a rarity in NYC" and that the clock is one of the few remaining in New York which have not been electrified, the Designation Report for the CHNHD recognized the uniqueness and historical importance of the Russell Sage mansion as one of the few remaining Victorian mansions in the city. The Summary of the Report indicates that the district contains "some of Brooklyn's finest and most detailed row houses, ...freestanding residences ...dating from the middle of the nineteenth century...(Report at 4). It specifically notes that while most of the freestanding villas were "swept away' by development, a few remained within the district including the 1870 Dean Sage mansion, - "a rare High Victorian Gothic residence" designed by Russell Sturgis, a master of that style. (Id). The Report describes the Dean Sage resident as "one of the oldest and most important nineteenth-century mansions remaining in the District, a "rare example" of Sturgis' houses remaining in NYC (263) and "a well preserved reminder of northwestern Crown Heights' suburban years." (P 15). Finally, the First Department's conclusion that the "clock's mechanism represents an "element of the city's cultural and economic history ... and maintaining it would promote pride in the "accomplishments of the past" and advance the statutory purposes" (157 AD3d at 146) applies with equal force to maintaining the Mansion as a free standing building from the St, Marks Ave vantage point.

Another tenet of statutory construction considered by the First Department - that all portions of the statute be read together - mandates that this Court, as the court did in Save Americas Clock, look to § 25-304(b). This provision permits the LPC to "apply or impose" with respect to the construction, reconstruction, alteration etc of a designated landmark, limitations or conditions which "are more restrictive" than those proscribed or made by other provisions the law. Obviously the extraneous factors considered by the LPC are not more restrictive but more expansive.

Other canons of statutory construction also mandate that the term "other pertinent matters" be read in a narrow restrictive manner. First, words, phrases and sentences of a section "should be interpreted with reference to the scheme of the entire section" and the meaning of an undefined word depends on the meaning of the whole act. People v. Odum, 31 NY3d 344, 351 (2018) ("such"); Charlotte's Restaurant, supra, 121 AD2d at 972 citing to Statutes §97 ("incidental"); Riccelli Enters , Inc., supra 30 Misc 3d 573, 581-82 (Sup. Ct., Onondaga Cty, 2010) (even if there was ambiguity in the phrase "on behalf of" the resolution must be in favor of a narrow interpretation, since "the words used in a statute are construed in connection with, and the meaning is ascertained with reference to the words and phrases with which they are associated").

General words of a statute do not overrule or render meaningless the particular words of a statute. Statutes, §238. See, Hudson Valley Dist. Council of Carpenters v. State, 152 AD2d 105, 108 (3d Dept. 1989)) (word "other" is given its common meaning within the meaning of the statute). Furthermore, under the rule of Noscitur a sociis (Statutes, §239(a)), the meaning of an amorphous word or phrase may be ascertained by a "consideration of the company in which it is found and the meaning of the words which are associated with it." Popkin v. Sec. Mut. Ins. Co. Of NY 48 AD2d 46, 48 (1st Dept. 1975) (Where comprehensive words in a contract are followed by an enumeration of specific things, under the rule of ejusdem generis the things coming within the comprehensive words will be limited to those of a like nature to those enumerated). Under the doctrine of noscitur a sociis "a word is known by the company it keeps" and the court relies upon this rule to "avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving "unintended breadth to the Acts of Congress." Gustafson v. Alloyd, 513 U.S. 561,575,131 L. Ed 2d 1, 29 (1995). (the word "communication" must be interpreted narrowly as it is but one word in a list); Rothstein v. Am. Int'l Grp., Inc., 837 F. 3d 195 (2d Cir. 2016) (the word "affiliate" must be viewed in the full context of the exclusion provision. The term "affiliate" directly follows the terms "parent" and "subsidiary," and directly precedes the terms "officer" and "director.") An ancillary to this doctrine is "(t)hat several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well." United States v. Pena, 161 F. Supp. 3d 268, 279 (S.D.NY 2016); Bd. Of Mgrs of 194 Thompson st. Condo v. 194 Thompson St. Owner LLC, 2018 NY Slip. Op. 32169(U). 20-18 NY Misc. LEXIS 3806 (Sup. Ct. NY Co. 2018); See, Bd. Of Managers supra at 11-12 (under these two doctrines the court looks to the full enumerated list of replacements under the statute to determine whether the legislature intended the replacement of 156 sliding glass doors to be considered as "window systems").

In light of the above, the term "in addition to any other pertinent matters" must be interpreted within the context of the specific factors of aesthetic, historical and architectural values and significance, architectural style, design, arrangement, texture, material and color (25-307 (b)(1). It also must be interpreted within the context of the mandate that the LPC consider, "the effect of the proposed work in creating, changing, destroying or affecting the exterior architectural features of the improvement upon which such work is to be done" §25-307(b)(2). While it is not the function of this court to give a precise definition of this term at this juncture, it is clear that the term does not give the LPC carte blanche to consider any matter that might be urged upon it by a developer or the public and it certainly does not authorize the LPC to consider the financial or economic constraints faced by an applicant and or the social desirability of the project that is the subject of the COA.

Based upon the foregoing, this Court hereby finds the LPC determination granting a COA was arbitrary and capricious and based upon an error of law. The petition is therefore granted and the COA is vacated. The case is remanded to the LPC for a new hearing in light of this Court's rulings. DATED: April 5, 2019 _____________________________ KATHERINE A. LEVINE Justice Supreme Court