Opinion
101513/2015
12-07-2017
Adam JACOBS, Jarret Wolfman, Margaret Calas, Peros Kamitsis, and Elizabeth Garofalo, Petitioners, v. NEW YORK CITY LANDMARKS PRESERVATION COMMISSION, New York Quarterly Meeting of the Religious Society of Friends, and Friends Seminary of the New York Quarterly Meeting, Respondents.
Jack L. Lester Esq., 99 Park Avenue, New York, NY 10016, For Petitioners New York City Landmarks Preservation Commission, Teresita Magsino, Assistant Corporation Counsel, 100 Church Street, New York, NY 10007, For Respondent New York Quarterly Meeting of the Religious Society of Friends and Friends Seminary of the New York Quarterly Meeting, Lisa Bebchick Esq. and Mark Siegmund Esq., Fried, Frank, Harris, Shriver & Jacobson, LLP, 1 New York Plaza, New York, NY 10004, For Respondents
Jack L. Lester Esq., 99 Park Avenue, New York, NY 10016, For Petitioners
New York City Landmarks Preservation Commission, Teresita Magsino, Assistant Corporation Counsel, 100 Church Street, New York, NY 10007, For Respondent
New York Quarterly Meeting of the Religious Society of Friends and Friends Seminary of the New York Quarterly Meeting, Lisa Bebchick Esq. and Mark Siegmund Esq., Fried, Frank, Harris, Shriver & Jacobson, LLP, 1 New York Plaza, New York, NY 10004, For Respondents
Lucy Billings, J.
I. BACKGROUND
Petitioners reside near 212–222 East 16th Street in New York County, premises owned by respondent New York Quarterly Meeting of the Religious Society of Friends in a designated historic district, on which respondent Friends Seminary of the New York Quarterly Meeting operates a school. Petitioners have objected to the visual impact of Friends Seminary's proposed renovations to the premises and seek to annul respondent New York City Landmarks Preservation Commission's determination May 19, 2015, granting a certificate of appropriateness that allowed Friends Seminary to undertake the renovations. Petitioners maintain that the Landmarks Preservation Commission's determination violated the New York Open Meetings Law and the New York City Landmark Preservation Act's procedures, lacked a rational basis, and therefore was affected by an error of law and arbitrary. C.P.L.R. § 7803(3). For the reasons explained below, the court denies the petition.
II. THE LANDMARKS PRESERVATION COMMISSION'S COMPLIANCE WITH ITS GOVERNING PROCEDURES
Petitioners claim that the Landmarks Preservation Commission violated the Open Meetings Law, NY Pub. Off. Law § 103, and the Landmarks Preservation Act, N.Y.C. Admin. Code §§ 25–308, 25–313, because the Commission granted Friends Seminary a certificate of appropriateness for the renovations to the school buildings at a meeting where the public was denied participation. Petitioners do not contend that the notice of any public hearing or public meeting was inadequate, but challenge the procedures by which the Commission conducted the hearing or meeting. See NY Pub. Off. Law § 104(1) ; N.Y.C. Admin. Code § 25–313(a). Specifically, petitioners contend that the revisions Friends Seminary made to its proposed renovations between a public hearing on its proposal April 21, 2015, and a public meeting about its revised proposal May 19, 2015, required another public hearing rather than a meeting. Second, petitioners contend that Commission members discussed and deliberated on the revised proposal privately before the public meeting May 19, 2015, rather than at a public meeting or hearing as required.
A. The Landmarks Preservation Law
The Landmarks Preservation Commission is charged with determining whether to grant a certificate of appropriateness where a land or building owner seeks to perform construction work in an historic district. N.Y.C. Admin. Code § 25–307(a) ; SoHo Alliance v. New York City Bd. of Stds. & Appeals , 264 AD2d 59, 61 (1st Dep't 2000), aff'd , 95 NY2d 437 (2000). "The commission shall hold a public hearing on each request for a certificate of appropriateness." N.Y.C. Admin. Code § 25–308.
At any such public hearing, the commission shall afford a reasonable opportunity for the presentation of facts and the expression of views by those desiring to be heard, and may, in its discretion, take the testimony of witnesses and receive evidence; provided, however, that the commission, in determining any matter as to which any such hearing is held, shall not be confined to the facts, views, testimony or evidence submitted at such hearing.
N.Y.C. Admin. Code § 25–313(b) ; Parkhouse v. Stringer , 55 AD3d 1, 3 n.1 (1st Dep't 2008). The public hearing is for the purpose of gathering information and is not an adversarial proceeding. Gilbert v. Board of Estimate of City of NY , 177 AD2d 252, 252 (1st Dep't 1991).
The Landmarks Preservation Commission conducted a public hearing April 21, 2015, on the certificate of appropriateness sought by Friends Seminary. Members of the public, including petitioners, participated in the hearing by voicing concerns about the Friends Seminary's proposal, many of which were echoed by the Commission chair and members. In response to these concerns, Friends Seminary subsequently submitted a revised proposal to the Commission, which it received before its public meeting scheduled for May 19, 2015.
"The Commission may, upon adoption of a motion, close the hearing and leave the Record open on a particular item, until a stated date to allow for the submission of additional written information." 63 R.C.NY § 1–05. See Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn. , 306 AD2d 113, 114 (1st Dep't 2003). Thus the Landmarks Preservation Commission's receipt of the revised proposal complied with the regulatory procedures under the Landmarks Preservation Law.
The revised proposal raised no new concerns that petitioners had no opportunity to comment on at the prior public hearing. Instead, the revisions addressed, albeit not to petitioners' full satisfaction, many of the concerns expressed at the hearing April 21, 2015. Of particular concern to petitioners, the revised proposal included an explanation that the lack of space underground did not permit below-grade development. As presented by Friends Seminary's architect: "The fact is, that the entire underground is already taken up. Under the Meeting House is the cafeteria, mechanical space, then there are lockers and a two story deep gym." N.Y.C. Landmarks Preserv. Comm'n's Admin. R. 676. See Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn. , 306 AD2d at 114. The revised proposal posted on the Landmarks Preservation Commission's public website May 15, 2015, also demonstrates the limited available underground space. R. 634–35. Although the plans reveal a confined unexcavated portion, the architect explained not only that this unexcavated space was limited, but also that Friends Seminary rejected any further use of underground space because:
there are enormous water problems on the site. And ... as the water seeks its lowest level it begins to damage the foundations of the buildings around it. So the foundations of all these buildings would have been in jeopardy.
R. 677.
At the prior public hearing petitioners themselves raised their concerns about the renovations' visibility from the street, suggested the alternative of below-grade development, and had an opportunity to demonstrate through their own data and analysis that underground space was available to permit this alternative. Petitioners also availed themselves of the opportunity to submit written comments to the Landmarks Preservation Commission on the revised proposal May 17, 2015, which allowed petitioners to address the renovations' continued visibility from the street and the available underground space depicted in the revised proposal. R. 634–35. Although the time allowed between May 15 and May 19, 2015, was short, petitioners do not claim it was inadequate.
Petitioners claim, however, that Friends Seminary's presentation at the public meeting revealed a revision that increased the mass of the bulkhead on the Hunter Hall building where both the original and the revised proposals added two stories. The school's revised proposal publicly posted May 15, 2015, and its presentation May 19, 2015, do not support this claim. The original proposal extended the stairs and elevator bulkheads along the sides of the building up the additional two stories. Where the extended stairs begin, the revised proposal:
pulled the stair into the building, so it's rising up within the building and finally comes out in the most minimal way
... to provide an enclosed exit off the play roof.
We did a similar thing at the other side.
R. 678–79. The revised proposal posted May 15, 2015, depicts this reduction in bulk described at the meeting May 19, 2015, as well as a reduction in height. R. 637–38, 640–42.
Although the revisions did not move any of the proposed additions to the school buildings' height and bulk from above ground to underground, the revisions did not expand the proposed additions above ground. Notably, petitioners do not dispute that in neither this respect nor any other respect would the revised work have any greater adverse impact on their interests, and in many respects the revised proposal was more favorable to petitioners, than the original proposal. Moreover, insofar as any proposal increased the construction's height, bulk, or depth extending back from the sidewalk, such an increase does not necessarily detract from the district's historical character as assessed by the Landmarks Preservation Commission.
Nevertheless, petitioners contend that the Landmarks Preservation Law required the Landmarks Preservation Commission to hold a public hearing allowing the public to comment on the revised proposal before the Commission granted Friends Seminary the certificate of appropriateness. The statute requires a public hearing for "each request for a certificate of appropriateness." N.Y.C. Admin. Code § 25–308. Since the revised proposal did not raise new issues that would further impact the neighborhood, only responded to issues already raised at a public hearing, and thus did not substantially deviate from the original proposal, the revised proposal did not require a second hearing. Maxtone–Graham v. Landmarks Preserv. Commn. of City of NY , 1 AD3d 295, 296 (1st Dep't 2003).
In sum, the determination granting the certificate of appropriateness was the very product of the public hearing at which various concerns, including petitioners', were discussed. Shubert Org. v. Landmarks Preserv. Commn. of City of NY , 166 AD2d 115, 120–21 (1st Dep't 1991). See Maxtone–Graham v. Landmarks Preserv. Commn. of City of NY , 1 AD3d at 296. The law leaves the determination whether the concerns raised are addressed adequately and satisfactorily to the Commission, not to the public. As New York City Administrative Code § 25–313(b) sets forth: "the commission, in determining any matter as to which any such hearing is held, shall not be confined to the facts, views, testimony or evidence submitted at such hearing."
B. Open Meetings Law
Petitioners claim that the Landmarks Preservation Commission also violated the Open Meetings Law, NY Pub. Off. Law § 103, by granting the certificate of appropriateness at the meeting May 19, 2015, without public participation. Under this law a meeting is "the official convening of a public body for the purpose of conducting public business, including use of videoconferencing for attendance and participation by the members of the public body." NY Pub. Off. Law § 102(a). See Thomas v. New York City Dept. of Educ. , 145 AD3d 30, 35 (1st Dep't 2016). "Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with section ninety-five of this article." NY Pub. Off. Law § 103(a). See Smith v. City Univ. of NY , 92 NY2d 707, 713 (1999) ; Thomas v. New York City Dept. of Educ. , 145 AD3d at 35. No party claims that the exceptions apply. See NY Pub. Off. Law § 105. "The purpose of the Open Meetings Law is to prevent municipal governments from debating and deciding in private what they are required to debate and decide in public." Gernatt Asphalt Prods. v. Town of Sardinia , 87 NY2d 668, 686 (1996). See NY Pub. Off. Law § 100 ; Perez v. City Univ. of NY , 5 NY3d 522, 528 (2005) ; Smith v. City Univ. of NY , 92 NY2d at 713 ; Thomas v. New York City Dept. of Educ. , 145 AD3d at 34–35. Petitioners, as the parties claiming noncompliance with the Open Meetings Law, bear the burden to demonstrate good cause for reversing any Landmarks Preservation Commission's actions that violated the law. Gernatt Asphalt Prods. v. Town of Sardinia , 87 NY2d at 686 ; New York Univ. v. Whalen , 46 NY2d 734, 735 (1978).
Petitioners contend that the Landmarks Preservation Commission's changed views at the public meeting, where the Commission granted the certificate of appropriateness based on detailed findings and reasons, shows that, to have arrived at that determination, the Commission must have met privately between receipt of the revised proposal and the public meeting. All the evidence sought by petitioners through disclosure, C.P.L.R. § 408, or presented from other sources, however, shows otherwise. Nothing shows that Commission members as a group discussed or deliberated on the revised proposal and thus held a meeting that was not public, but that was required to be public, before the public meeting May 19, 2015. The evidence shows only that the chairperson met with the Landmarks Preservation Commission's staff and its attorney May 12, 2015, and discussed the staff's formulation of observations and recommendations to the Commission regarding the revised proposal. No deposition testimony or documents reveal that any other Commission members, let alone a quorum, attended this meeting or convened at any time between Friends Seminary's submission of its revised proposal and the public meeting May 19, 2015.
Instead, the Landmarks Preservation Commission's staff formulated detailed, thoroughly supported observations and recommendations, which all Commission members, appointed to the Commission based on their expertise and interest in landmarks preservation, received and had the opportunity to analyze before the public meeting. Then, at the public meeting, based on the Commissioners' expertise and analysis of the revised proposal, which Friends Seminary also presented orally at the meeting, and the prepared observations and recommendations regarding the revised proposal, all distributed in advance of the meeting, the Commission adopted the staff's recommendations. Maxtone–Graham v. Landmarks Preserv. Commn. of City of NY , 1 AD3d at 296 ; Shubert Org. v. Landmarks Preserv. Commn. of City of NY , 166 AD2d at 120 ; Committee to Save Beacon Theater v. City of New York , 146 AD2d 397, 405 (1st Dep't 1989).
The public meeting May 19, 2015, was open to the public. The Open Meetings Law requires an opportunity for the public to participate only by observing and listening to the proceedings, not by speaking at the meeting as petitioners contend. Petitioners do not show any irrationality on the part of the Landmarks Preservation Commission in hearing only from the applicant for the certificate of appropriateness, nor any requirement that, once the Commission allows the applicant to speak, the Commission must provide the public an equal opportunity. A meeting presupposes that at least one participant will speak publicly, but not necessarily all attendees. See NY Pub. Off. Law § 102(a). The public meeting provides an opportunity for the interested public to determine, by observing and listening, whether the applicant has satisfied the concerns expressed at the prior public hearing, but, again, the determination whether to grant a certificate of appropriateness based on the applicant's final proposal is for the Commission. N.Y.C. Admin. Code § 25–313(b).
III. THE LANDMARKS PRESERVATION COMMISSION'S DETERMINATION
The court must uphold the Landmarks Preservation Commission's determination if it is rationally based, Maxtone–Graham v. Landmarks Preserv. Commn. of City of NY , 1 AD3d at 296 ; Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn. , 306 AD2d at 114; Committee to Save Beacon Theater v. City of New York , 146 AD2d at 405, and therefore not arbitrary. Teachers Ins. & Annuity Assn. of Am. v. City of New York , 82 NY2d 35, 41 (1993). See Terrace Ct., LLC v. New York State Div. of Hous. & Community Renewal , 18 NY3d 446, 454 (2012) ; Stahl York Ave. Co. LLC v. City of New York , 76 AD3d 290, 295 (1st Dep't 2010). The court must defer to the Landmarks Preservation Commission when it acts in its area of expertise. Terrace Ct., LLC v. New York State Div. of Hous. & Community Renewal , 18 NY3d at 454 ; Teachers Ins. & Annuity Assn. of Am. v. City of New York , 82 NY2d at 41–42 ; Maxtone–Graham v. Landmarks Preserv. Commn. of City of NY , 1 AD3d at 296 ; Stahl York Ave. Co. LLC v. City of New York ; 76 AD3d at 295.
In determining whether to grant a certificate of appropriateness, the Landmarks Preservation Act requires the Landmarks Preservation Commission to apply its expertise. The Commission must:
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.
N.Y.C. Admin. Code § 25–307(b)(1). An evaluation of those effects and relationships requires the Commission to 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." N.Y.C. Admin. Code § 25–307(b)(2).
The Landmarks Preservation Commission addressed the aspects of the Friends Seminary's revised proposal to which petitioners now object based on aesthetic, historical, and architectural considerations. Stahl York Ave. Co. LLC v. City of New York , 76 AD3d at 298 ; Gilbert v. Board of Estimate of City of NY , 177 AD2d at 253. After a hearing and deliberation, in compliance with the governing statute, N.Y.C. Admin. Code § 25–315(a), the Commission articulated 19 specific findings founded on the factual record and sound aesthetic, historical, architectural, and other reasons to support the determination to grant the certificate of appropriateness. Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn. , 306 AD2d at 114; Shubert Org. v. Landmarks Preserv. Commn. of City of NY , 166 AD2d at 120–21. See Stahl York Ave. Co. LLC v. City of New York , 76 AD3d at 297–98. Therefore the determination was not arbitrary. Committee to Save Beacon Theater v. City of New York , 146 AD2d at 405–406.
IV. CONCLUSION
Upon this record, petitioners fail to establish that respondent New York City Landmarks Preservation Commission's determination May 19, 2015, granting a certificate of appropriateness to respondent Friends Seminary of the New York Quarterly Meeting to renovate its school at 212–222 East 16th Street, New York County, violated any law or was irrational or arbitrary. C.P.L.R. § 7803(3). Therefore the court denies the petition and dismisses this proceeding. C.P.L.R. § 7806. This decision constitutes the court's order and judgment of dismissal.