Opinion
07-2500.
Decided October 5, 2007.
For Petitioner: Hancock Estabrook, LLP, Wendy A. Marsh, Esq. of Counsel.
For Respondent: Rory A. McMahon, Esq., City of Syracuse Corporation Counsel, Nancy J. Larson, Esq. of Counsel.
Petitioner is the owner of certain buildings located at 431 through 441 South Warren Street in the City of Syracuse, New York. Petitioner seeks to demolish said buildings and made proper application for the necessary permits and certificates from the various entities which have jurisdiction over such demolition requests.
Respondent, SYRACUSE LANDMARK PRESERVATION BOARD (hereinafter referred to as "LPB") designated this property as a protected site and this designation was approved by Respondent, CITY OF SYRACUSE COMMON COUNCIL (hereinafter referred to as " COMMON COUNCIL"). The LPB subsequently denied Petitioner's application for a Certificate of Appropriateness which was required in order for Petitioner to secure a demolition permit. Thereafter, Respondent, CITY OF SYRACUSE PLANNING COMMISSION (hereinafter referred to as " PLANNING COMMISSION") denied Petitioner's appeal of the LPB's denial.
Petitioner, by Notice of Verified Petition filed on the 27th day of April 2007, commenced a combined Article 78 proceeding and action for declaratory judgment seeking a judgment setting aside the decision of the LPB denying Petitioner's application for the Certificate of Appropriateness, the decision of the PLANNING COMMISSION denying the appeal of the LPB's denial and the PLANNING COMMISSION'S denial of Petitioner's special permit application. Petitioner further seeks an order directing the LPB and PLANNING COMMISSION to issue the Certificate of Appropriateness and special permit. In addition, Petitioner seeks a judgment pursuant to CPLR 3001declaring that the Respondent engaged in the unlawful taking of the property in violation of the 5th Amendment of the United States Constitution.
Respondent, by Verified Answer filed on July 2, 2007, denied and opposed the allegations and, by Notice of Motion also filed on July 12, 2007, moved to dismiss Petitioner's declaratory judgment action. Various responses, replies and sur-replies were filed by the parties, all of which were accepted by the Court and comprise the record of this proceeding.
The standard for judicial review of administrative determinations such as the one at bar is whether or not the determination by the respective administrative body was illegal, arbitrary, capricious, or an abuse of discretion. See: MATTER OF IFRAH v. UTSCHIG , 98 NY2d 304 (2002); MATTER OF MAY v. TOWN OF LAFAYETTE ZBA, ET , 2007 WL 2812764, 2007 NY Slip Op. 07243 (Sept. 2007)
Based on the record and arguments advanced by knowledgeable counsel for the respective parties and for the reasons set forth below, the Court determines that the COMMON COUNCIL is not a proper party to the Article 78 proceeding and that proceeding only is hereby dismissed against this Respondent; and it is SO ORDERED. The Court also determines that the actions of Respondents LPB and PLANNING COMMISSION were arbitrary and capricious and an abuse of discretion.
It is uncontroverted in the record that Petitioner purchased the subject property on South Warren Street after it had been abandoned and in disrepair for approximately ten (10) years. The purpose of this acquisition was to protect the integrity of Petitioner's adjacent property and the printing business which occupied Petitioner's property. Upon purchase, Petitioner had the water to the buildings shut off to prevent further leakage and damage to the printing machinery and secured the structures to prevent further vandalism.
Petitioner's investigation of the possible renovation of these buildings concluded that renovation would not be economically feasible. Consequently, Petitioner, in 2003, sought a demolition permit. This application set in motion a procedure whereby the LPB was required to determine whether or not this property could be designated as a Protected Site, and, if so, no demolition would be possible without first securing from the LPB a Certificate of Appropriateness for Removal/Demolition.
In an effort to evaluate whether or not the property should be designated as protected, the LPB hired architect Randall Crawford, a former or current Board member, to assess the historical and architectural value and significance of these structures. According to LPB's architect, the interior had little or no architectural or historic significance and its historic association was weak since there was little physical fabric to connect its ownership and occupation. Mr. Crawford also reported that the structure had a history with a number of notable persons.
Petitioner withdrew its initial application in an effort to cooperate with the City of Syracuse Department of Economic Development and its offer to find a tenant for the buildings and thereby avoid demolition. However, after this City agency failed to produce any tenants for six (6) months, Petitioner again sought to demolish the structures.
In conjunction with this second application for demolition, the LPB again utilized the Crawford report and recommended that only the exterior of these structures be designated as a Protected Site. The minutes of the meeting wherein the recommendation was made appear to reflect the LPB's recognition that Petitioner had expended a considerable amount of money and that the costs of restoration lacked economic viability.
In November 2004, based on this recommendation by the LPB, the PLANNING COMMISSION passed a resolution designating the exterior of the buildings as a Protected Site. In December 2004, by unanimous vote, the COMMON COUNCIL passed an ordinance amending the property's zoning to include the buildings as a Protected Site.
In reviewing Petitioner's application for a Certificate of Appropriateness for Removal/ Demolition the LPB utilized the standards set forth by the U. S. Department of Interior rather than the criteria established in the City's ordinance with respect to the issuance of a Certificate of Appropriateness. Based on the application of the Department of Interior standards, the LPB denied Petitioner's application at a board meeting held in February 2006 without notice to Petitioner.
Petitioner appealed the LPB's decision to the PLANNING COMMISSION. Under this appeal process, the PLANNING COMMISSION is to review the application for the Certificate of Appropriateness de novo in accordance with the proper criteria, and review and consider all relevant economic factors.
In its appeal before the PLANNING COMMISSION, Petitioner submitted substantial architectural documentation relating to the deteriorated condition of the buildings; the presence of significant mold, asbestos, and lead paint, which would require substantial and expensive abatement procedures; the inability to attract any tenants due to these conditions; and the recommendations of qualified engineers and architects that these buildings be demolished in view of the estimated and projected renovation costs of $2-6 million.
In addition to the appeal of the LPB's denial of the Certificate of Appropriateness, the Petitioner had also filed an application for a special permit for the construction of a parking lot on the property. The PLANNING COMMISSION considered both applications simultaneously. Despite Petitioner's objection to joint consideration of its applications, the Court does not view this procedure as inappropriate, although the outcome may well be inappropriate.
Based on the record, it is apparent that the PLANNING COMMISSION applied the same standard of review that the LPB had applied, which standards are applicable to the Protected Site designation process but not to the Certificate of Appropriateness process. Based on this review, the PLANNING COMMISSION denied Petitioner's appeal of the LPB's denial of the Certificate of Appropriateness to Remove/Demolish and denied Petitioner's application for a special permit to construct a parking lot following demotion.
Upon a review of the entire record, this Court finds that the LPB's decision to deny Petitioner's application for a Certificate of Appropriateness was arbitrary, capricious, an abuse of its discretion, and/or legally insufficient.
The LPB applied the criteria it customarily utilized in Protected Site designation proceedings. These criteria are not applicable to applications for a Certificate of Appropriateness. Furthermore, the application of these standards as promulgated by the Department of the Interior cannot and, as was conceded during oral argument, could never allow for the demolition of a Protected Site.
In addition, although the LPB and PLANNING COMMISSION have adopted and have been applying the standards of the U.S. Department of the Interior since1975 and/or 1981, the application of said standards has been without a legal basis. The LPB and, subsequently, the PLANNING COMMISSION have not been properly empowered or enabled by COMMON COUNCIL legislation to apply the Department of Interior Standards because the resolution adopting these standards was never filed with the City Clerk as is required in the enabling ordinance. In fact, it is only through the vigilant efforts of Attorney Larson that said resolution has now, as of September 2007, been filed with the City Clerk. However, despite counsel's argument to the contrary, this failure to file is not a minor irregularity to be overlooked.
Likewise, on the basis of this entire record, the Court finds that the PLANNING COMMISSION's denial of Petitioner's appeal of the LPB's denial of the Certificate of Appropriateness was arbitrary and an abuse of its discretion. From the record, it is apparent that the PLANNING COMMISSION did not consider Petitioner's application de novo, but merely applied the identical incorrect standards as did the LPB, and did not adequately consider the economic factors germane to this particular application. Rather, the PLANNING COMMISSION "put the cart before the horse" — to coin a historical phrase — and dwelled on the proposed post demolition use of this site as a parking facility and the resulting gap in the street scape. These matters could have been properly considered subsequently during the PLANNING COMMISSION's review of Petitioner's special permit application and the granting of such a permit could have been conditioned on Petitioner satisfactorily addressing these issues. Indeed, it is inappropriate for the PLANNING COMMISSION to consider post demolition use upon an appeal of the LPB's denial of a Certificate of Appropriateness for Removal/Demolition. WOLK v. REISEM , 67 AD2d 819 (4TH Dept., 1979).
It is obvious from the record that the PLANNING COMMISSION did not give thought to the possible danger to the general public due to the deteriorating conditions of these structures as documented by engineering, architectural and fire department reports and opinions which stated that these structures could possibly collapse under their own weight.
It was arbitrary and capricious for the PLANNING COMMISSION in this de novo review process not to adequately consider the economic hardship for Petitioner to renovate and rent out said buildings in such a manner so as to attract tenants (which even the Department of Economic Development could not do) willing to pay rent sufficient to carry these structures. The estimated and documented dollars and cents it would take to do so, ranging from $2.4 to $6 million, is simply unbearable and unconscionable. The contention of the PLANNING COMMISSION that it is not obligated to consider economic factors in its de novo review is totally without merit, and in this particular matter, is arbitrary and capricious in light of the Fourth Department's holding in MATTER OF PRESERVATION ASSOCIATION OF CNY v. MARCOCCIA, ET AL. , 284 AD2d 948 (4th Dept., 2001).
Further, Respondent's Motion to Dismiss Petitioner's fourth cause of action seeking a declaratory judgment concerning the alleged unlawful taking of its property by Respondents on the basis that such a cause of action is time barred is DENIED. The relief sought by Petitioner in this particular cause of action seeks the review of legislative action via a declaratory judgment action, not an Article 78 proceeding.' MATTER OF LAKELAND WATER DISTRICT V. ONONDAGA COUNTY WATER AUTHORITY , 24 NY2d 400 (1969). Therefore, the four-month statute of limitations set forth in CPLR 217 is not applicable to this particular request for relief.
Therefore, by reason of the foregoing, it is hereby
ORDERED, that the decision of the LPB denying Petitioner's application for a Certificate of Appropriateness for Removal/Demolition is hereby vacated and set aside; and it is further
ORDERED, that the decision of the PLANNING COMMISSION denying the Petitioner's appeal of the LPB's denial of Petitioner's application for a Certificate of Appropriateness for Removal/Demolition is hereby vacated and set aside; and it is further
ORDERED, that the decision of the PLANNING COMMISSION denying Petitioner's application for a special permit concerning the post demolition use of the subject property is hereby vacated and set aside; and it is further
ORDERED, that the Petitioner's Application for a Certificate of Appropriateness for Removal/Demolition is hereby remanded to the LPB for determination using the legally established standards for the issuance of a Certificate of Appropriateness for Removal/Demolition, said application to be placed on the LPB's agenda within thirty (30) days of the date of the filing of this order; and it is further
ORDERED, that in the event the LPB denies the Petitioner's application, the PLANNING COMMISSION shall conduct a de novo review of said denial with full consideration of all economic factors and hardships upon proper application by Petitioner; and it is further
ORDERED, that Respondents Motion to Dismiss Petitioner's fourth cause of action seeking a declaratory judgment is hereby DENIED.