NYC's Landmarks Preservation Commission's Legal Document Responding To Tribeca Trust Lawsuit

FILED: NEW YORK COUNTY CLERK 07/28/2017 05:20 PM INDEX NO.
158483/2016
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 07/28/2017
SUPREME COURT OF THE STATE OF NEV/ YORK

COUNTY OF NEW YORK
X
In the matter of the Application of

TRIBECA TRUST, INC.
and LYNN ELLSWORTH,
Petitioners,
Index No. 15848312016
For Judgment Pursuant to Articles 63 and 78 of the
Civil Practice Law and Rules,
- against -
CITY OF NEW YORK, THE NEW YORK CITY

LANDMARKS PRESERVATION COMMIS SION,
and MEENAKSHI SRINIVASAN, Chair,
Respondents.
RESPONDENTS' MEMORANDUM OF LAW

IN OPPOSITION TO THE PETITION
ZACHARY \ry. CARTER

Corporation Counsel of the
City of New York
Attorney for Respondents
100 Church Street
New York, New York 10007
(2r2) 3s6-2t78
SHERYL NEUFELD
MICHELLE GOLDBERG-CAHN
LOUISE LIPPIN
Of Counsel.
July 28,2077
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FILED: NEW YORK COUNTY CLERK 07/28/2017 05:20 PM INDEX NO. 158483/2016
SUPREME COURT OF THE STATE OF NEW YORK
::îllîï'_Yl?* ____.____._x
In the Matter of the Application of

TRIBECA TRUST, INC.
and LYNN ELLSWORTH,
Petitioners, Index No. 158483 12016
For Judgment Pursuant to Articles 63

and 78 of the Civil Practice Law and Rules
-against-
CITY OF NEW YORK, THE NEV/ YORK CITY

LANDMARKS PRESERVATION COMMIS SION,
and MEENAKSHI SRINIVASAN, Chair,
Respondent
MEMORANDUM OF LAW IN OPPOSITION TO THE PETITION
Preliminary Statement
Respondents, the City of New York, the New York City Landmarks Preservation
Commission, and its Chair, Meenakshi Srinivasan (collectively "LPC" or the "Commission"), by
its attorney, Zachary W. Cafier, Corporation Counsel of the City of New York, submit this
memorandum of law in opposition to the amended verified petition ("petition").
Petitioners, Tribeca Trust, Inc. ("Tribeca Trust") and its Chair, Lynn Ellsworth
("Ellsworth"), submitted requests for evaluation ("RFE") to the Commission proposing
extensions of the borders of three desìgnated historic districts - Tribeca East, Tribeca North, and
Tribeca South. The RFE process is one by which the public may suggest properties or areas for
evaluation for landmark designation by the Commission. The LPC is not required or mandated
to solicit or review RFEs. Nonetheless, a lorm and instructions on how to submit suggestions to
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the Commission are set forth on its website. RFEs are reviewed by the RFE Committee --
comprised of the Chair, the Executive Director, the Director of Research, the Director of Special
Projects and Strategic Planning, members of the Research Department, and on occasion, other
agency staff such as the General Counsel. Based on the review of the petitioners' submissions,
and its own research and observations, the RFE Committee recommended that petitioners'
proposals not be recommended for further consideration because much of the area was deemed
not to merit further investigation while other parts were deemed not to be priorities. The Chair
informed the petitioners by letter that "[b]ased on [LPC's] priorities and the level of existing
landmark protection in the area, ILPC does] not plan to advance an extension of the Tribeca
districts at this time." See Letter from the Commission to Tribeca Trust, dated July 7, 2016, a
copy of which is included in the Administrative Record at page 594.1
In this Article 78 proceeding,2 petitioners' challenge LPC's decision declining to
advance their proposals to the Commission to be calendared, seek to have that decision annulled,
have the matter remanded to the LPC, and "simply demand" that this Court order the "LPC to
come up with a rational, articulable procedure and criteria by which to determine the Application
to Extend (on remand)." Petition, fl6 and Wherefore clause, respectively.
As an initial matter, petitioners do not have standing to challenge the
Commission's decision as they have failed to show injury in fact, discreet from that of the public
at large as a result of that decision. Tribeca Trust alleges that its mission is, among other things,
to "preserve Tribeca's historic scale, . . .protect and enhance its architectural character, quality of
' All future references to the accompanying Administrative Record will be denoted by "R." followed by the
appropriate page numbers.
' While the caption indicates that the proceeding is also brought under Afticle 63 of the CPLR, both the petition
and petitioners' mernorandL¡m of law are silent as to injunctive relief, and none has been requested in this
proceeding.
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life, economic vitality, and sense of place." Petition, fl9. Ellsworth states that she "lives in
Tribeca and regularly walks the Tribeca Historic Districts in appreciation of their historic,
cultural and architectural values." Petition, T 13. Interest and appreciation of Tribeca's
architecture is not sufficient to bestow standing on petitioners.
Moreover, petitioners are essentially seeking to compel the Commission to
promulgate rules - procedures and criteria -- to govern the RFE process. Coutts have routinely
held that the Commission has broad and unfettered discretion in controlling its calendar, and thus
in deciding what items should be calendared at all. As the decision to promulgate rules for RFE
review, or for the control of the Commission's calendar, are completely discretionary, there is no
legal basis to grant mandamus relief here.
Further, to the extent the petition can be construed as challenging the

determination with respect to petitioners' RFEs as arbitrary or capricious, such claim also fails,
as the determination was made in compliance with the applicable practices and procedures of the
Commission and was reasonable in all respects, in light of the Commissions' mandate, priorities,
purpose, and broad discretion. Courls have found that the LPC has complete discretion in
determining what applications to calendar for consideration by the full Commission for landmark
designation. The exercise of that discretion, by the review of the RFE Committee, and the
decision by the Chair, cannot be said to be arbitrary or capricious. Absent evidence that the
determination was made for an improper purpose, as is the case here, the courts have routinely
deferred to the expertise of the agency.
As petitioners have completely failed to show that they have standing to challenge
the Commission's decision, that they are entitled to relief in the nature of mandamus to compel,
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or that the determination was arbitrary or capricious, the petition must be denied in all respects,
and the proceeding dismissed in its entirety
RELEVANT STATUTORY PRO I ONS AND I,PC PROCEDIIRES
The Court is respectfully referred to the accompanying Verified Answer at flfl 84
through 11 1, as well as the accompanying affidavits of Sarah Carroll ("Carroll Aff.") and Donald
Presa ("Presa Aff."), for a complete statement of the relevant statutory provisions and LPC
procedures. A summary is presented herein.
The Landmarks Law
The purpose of the Landmarks Preservation Commission is to protect, enhance,
and perpetuate improvements and landscape features of special character or special historical or
aesthetic interest or value, to safeguard the City's historical, aesthetic and cultural heritage as is
reflected in such improvements, and to promote the use of historic districts, landmarks, interior
landmarks and scenic landmarks for the education, pleasure and welfare of the people of the City
of New York. New York City Administrative Code ("Administrative Code") $ 25-301, et seq,
which is referred to as the "Landmarks Law."
The LPC is an expert agency whose decisions are given deference by the Courts
because of its members' expertise. TIAA v New York City 185 AD2d 207 (lst Dep't 1992)
affld.82NY2d 35 (1993); Shubert Organization Inc. v. LPC,166 AD2d 115 (lstDep't 1991);
Committee to Save the Beacon Theatre v. City of New York, 146 AD2d 347 (1st Dep't 1989);
Society for Ethical Culture in the City of New York v. Spatt,68 AD2d 112 (1st Dep't 1979),
affd,51 NY2d 449 (1980),
The LPC is composed of eleven members, including "at least three architects, one
historian qualified in the field, one city planner or landscape architect, and one realtor." New
York City Charler ("Charter") $ 3020(1). With the exception of the Chair, the Commissioners
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are volunteers, donating approximately 3 to 4 days a month to the work of the Commission. The
Chair oversees the staff and the day-to-day operations of the Commission. The LPC is vested
with "such powers and duties as shall be prescribed by law with respect to the establishment and
regulation of landmarks, porlions of landmarks, landmark sites, interior landmarks, scenic
landmarks and historic districts." Id.
An "historic district" is defined in Landmarks Law S 25-302(h) as "Any area
which:(l) contains improvements which:(a) have a special character or special historical or
aesthetic interest or value; and (b) represent one or more periods or styles of architecture typical
of one or more eras in the history of the city; and (c) cause such area, by reason of such factors,
to constitute a distinct section of the city; and (2) has been designated as a historic district
pursuant to the provisions of this chapter.
The Landmark Designation Process
The Landmarks Law provides no requirements or criteria for how the
Commission is to establish its priorities or decide what building or area to bring forward for
formal consideration for landmark designation. That decision-making is properly left up to the
expertise of the agency, its profession staff and, ultimately, the Commissioners. This is a two-
step process. First, the LPC's Research Department conducts surveys of potential areas,
performs research on buildings, areas, cultural history, etc. in its efforts to identify buildings and
areas that are potentially eligible for consideration. Buildings or areas deemed to be potentially
eligible then become part of the pool of eligible resources that may be brought forward for
formal consideration. Second, senior stafi including the Director of Research, the Director of
Special Projects and Strategic Planning, the Executive Director and, ultimately, the Chair,
establish priorities and decide, aI any given time period, which buildings or areas in this pool
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should be brought forward to the Cornmission. In addition, the Commissioners themselves have
the authority to bring an item forward themselves pursuant to section l-02 of the Commission's
rules.
The Reouest for Evaluation l..RIlFttl Process
Requests for Evaluation are a way for the Commission to become aware of
potential resources that might be eligible for landmark designation. As with agency-initiated
research, the law establishes no application process, procedure or requirement as to how or when
the public can submit suggestions for considering buildings, sites, or areas for landmark
designation. This process is left completely to the expertise and discretion of the Commission.
Nonetheless, LPC accepts suggestions in the form of Requests for Evaluation ("RFE") to allow
members of the public to suggest buildings, interiors, districts and places for landmark
designation. Carroll Aff., TI 9,25.
The Commission's website, http://wwwl .n)'c.gov/site/lpc/designations/suggest-a-
landmark.page, provides instructions on how the public may propose a site or district for such
designation, and provides a form for that purpose. Canoll Aff. 11 18, and attachments.
The LPC Research Department, which is made up of 11 professional staff and
other employees, reviews the RFEs that LPC receives. The public is asked to provide as much
information about the property as possible, including images. The Research Department staff
enters the RFE into a database, reviews the submission and presents the RFE to the RFE
Committee, consisting of the Chair, Executive Director, Director of Research, the Director of
Special Projects and other agency staff members. Carroll Aff., nn 12-14.
Upon review of the submission, and its own observations and research, the
Research Staff makes a recommendation, which is then discussed by the members of the RFE
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Committee. Physical boundaries are an imporlant factor in designating any district, as the
Commission seeks to maximize the number of buildings for which the district is being
considered and to minimize the number of noncontributing or altered buildings, and vacant lots,
Carroll Aff., I 19; Presa Aff., Iï 8, 9. The RFE Committee decides whether additional research
is needed; which RFEs are of interest but are not an immediate priority within the context of
other buildings or districts curently under review; and which should be priorities, and advanced
to consideration by the Commission. The Commission is selective regarding what to make a
priority, as it is a volunteer commission with limited staff and resources. Canoll Aff.TT 6,21,
25; Presa Aff., Tf 16-20.
The RFE Committee considers not only whether the suggestion meets the legal
thresholds for designation, but how the proposed building or area fits into the agency's priorities.
The building or area is assessed in "light of many factors, including agency priorities, the
agency's policy of designating resources in all five boroughs, andthe importance of the resource
in the context of similar and/or already designated resources." Carroll Aff.,lTlT 9,22. Ultimately,
all these factors are considered by the Chair, in consultation with the Executive Director,
Director of Research and the Director of Special Projects, and a decision is made as to whether to
recommend that the properties presented in the RFE be added to the inventory of potential
historic resources that may later be advanced to the full Commission for consideration. Being
added to this inventory is no guarantee that a resource will move forward in the process at any
particular time. Carroll Aff., fl 21.
A determination that a property does "not merit future consideration means that
the property does not meet the minimum standards of the Landmarks Law or does not merit
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further consideration at this time...." Such a determination reflects the Commission's cunent
policies and priorities and can change over time. Camoll Aff.,n23.
A decision to bring a specifìc building or area into the pool of eligible properties
does not mean that it will be brought forward for consideration by the full Commission in the
near future or at any time. That decision-making process is separate, as discussed above. If the
building or area is prioritized, it will be brought forward to a public meeting, where the full
Commission will, at thal public meeting and after a presentation by the Research Department,
consider whether to calendar a public hearing to discuss the particular building, interior or
district. If the Commission votes to calendar a public hearing, the Research Department staff
will prepare a draft report on the property. This report is a detailed, extensive undertaking that
requires a significant expenditure of time and other resources. Carroll Aff., lJT 12-13; Presa Aff.,
ItT 16-20.
If, however, aft.er reviewing the material submitted and discussing the pros and
cons with members of the RFE Committee, the determination is made that a proposed historic
property does not meet the necessary criteria and thus does not merit further consideration, the
applicant is so notified by letter. Canoll Aff., TT 23; Presa Aff., 11 17. Notwithstanding the
process described above, 63 RCNY $ I -02 permits any commissioner to make a motion to
calendar any building, interior, or district for formal consideration.
RELBVANT FACTS
The Court is respectfully referred to the accompanying Verified Answer at flfl 112
through 726, as well as the accompanying affidavits of Sarah Carroll and Donald Presa, for a
complete statement of the relevant facts in this rrratter. A summary is presented herein.
In the late 1980s and early 1990s the Tribeca area was carefully and thoroughly
researched and reviewed by the Commission before formulating the boundaries for the four
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districts that were ultimately proposed for historic designation - Nofth, East, South, and West.
The boundaries of the districts were proposed taking into account the integrity of the buildings,
design and the sense of place created by the street scape and building ensembles. See Presa Aff.;
T1[ 11-12. Historic district boundaries, especially the edges, are often a difficult and nuanced
endeavor. When drawing those boundaries, the Commission seeks to include landmark-worthy
buildings while minimizing the inclusion of vacant lots and buildings that do not contribute to
the special sense of place of the district, because, they are too altered or of an entirely different
era. Boundaries are tightly drawn and do not include buffer zones or other areas that do not
directly contribute to the district. Presa Aff., 1ì'll 8, 9.
The boundaries of the four Tribeca districts were determined after a thorough and
thoughtful review. Tribeca West was designated in 1991, TribecaNorth, East, and South were
designated in 1992. In 2002, LPC received an RFE to extend Tribeca South. Late in 2002, the
Tribeca South Extension was designated. Presa Aff., T 10-12,13.
In addition to designating the four districts, the Commission has designated 31
individual landmark buildings in the immediate area around the districts, as well as six individual
landmarks located within one of the districts. Car:roll Aff., ,11

32; Presa Aff., Tl4.
On or about July 31,2013, Ellsworth, as representative for Tribeca Trust,
submitted an RFE for an "expansion of the boundaries of the Tribeca Historic Districts." R. 4-
197. By letter, dated October 8,2013, R. l, LPC declined to advance the proposal. Canoll Aff.;
n26.
Thereafter, in 2014 and 2015, petitioners re-submitted RFEs to extend the
boundaries of TribecaNorth, R. 199-372,East freferred to as the "4 Clusters" by petitioners], R.
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313-406 and 408-513, and Tribeca South freferred to as "Southeast and Southwest" by
petitionersl, R. 514-93. Canoll Aff.;127.
The Chair, along with other members of the Commission met with board
members of Tribeca Trust in October 2014, and again in October 2015 to discuss their proposed
expansion of the Tribeca districts. Carroll Aff., TI 28, 31. The RFEs were also discussed at
several meetings of the Research Staff between October 2013 and September 2015. Canoll Aff.,
T 30.
Upon review and discussion of the material submitted in support of the RFEs, and
the observations and research of the Research Staff, and in particular of Mr. Presa, the RFE
Committee determined, with one minor exception, that the extension of the borders of the
existing Tribeca historic districts proposed by petitioners was not warranted and thus would not
be further considered at this time. Carroll Aff., fl 33; Presa Aff., lJ 4,10-12,21.
By letter, dated June 7, 2016, R. 594, LPC advised petitioners of the
determination. The letter reads in relevant parl, as follows:
We recognize that your organiza|ion has made significant effort in

researching the area and proposing additional expansions of the
Tribeca districts. After our meeting last fall, Research staff
reviewed the material and re-examined your proposed extension
areas. Much of the area was found not to merit designation beyond
a small section of fewer than ten buildings in the northwest corner.
Based on our agency priorities and the level of existing landmark
protection in the area, we do not plan to advance an extension of
the Tribeca districts at this time.
It is important to note that already over 64Yo of lots in Tribeca are

designated landmarks within historic districts. The LPC
comprehensively evaluated a larger area in the 1980s and early
1990s, which resulted in the designated districts Tribeca North,
West, East and South in 1991 and 1992. The Commission studied
the area again in2002, finding a small southern section meritorious
which we designated as Tribeca South Historic District Extension.
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The Commission staff surveys thousands of properlies each year

and welcomes suggestions from the public. In determining which
items to advance to the formal designation process, the Landmarks
Preservation Commission prioritizes potentially meritorious
historic resources in light of many factors, including: our policy to
diversify and designate historic resources in all five boroughs to
ensure that all areas of the city are represented, and the importance
of the resource in the context of similar and/or already designated
resources. The agency is committed to advancing districts in areas
that are less well-represented by landmarks.
Thereafter, on or about October 7,2016, petitioners commenced this proceeding
challenging LPC's decision not to forward petitioners' proposed extensions of the borders of the
three Tribeca historic districts to the full Commission for consideration. On May 25,2017,
petitioners filed an amended verifred petition.
The procedures for RFE review set forth on the Commission's website were
properly followed in reaching that decision. There is no basis for the mandamus relief sought by
petitioners to set forth additional procedures or different criteria with respect to the
Commissions' review of suggestions from the public. For the reasons set forth herein, and in the
Verified Answer and affidavits of Sarah Canoll and Donald Presa, the LPC maintains that the
decision declining to advance petitioners' proposals to the Commissioners for consideration was
rational and proper in all respects, and is not arbitrary or capricious, or an abuse of discretion.
Accordingly, the petition should be denied and the proceeding dismissed in its entirety.
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ARGUMBNT
POINT I
PETITIONERS DO NOT HAVB STANDING

TO CHALLENGE LPC'S DECISION
DECLINING TO CALENDAR THEIR
PROPOSALS TO EXTEND THE
BOUNDARIES OF THREE HISTORIC
DISTRICTS.
The petition alleges that Tribeca Trust is a non-profit organization whose mission
is "to educate the public about the history and architectural heritage of Tribeca, and to mobilize
residents and civic resources so as to, among other things: (i) preserve Tribeca's historic scale;
and (ii) protect and enhance its architectural character, quality of life, economic vitality, and
sense of place." Petition, flfl 8,9. According to the petition, its Chair, Ellsworth lives in Tribeca,
is a member and chair of Tribeca Trust, and "regularly walks the Tribeca Historic Districts in
appreciation of their historic, cultural and architectural values." Petition, TT 11-13.
Petitioners "demand[] . . . that the LPC actually establish a procedure . . . and
criteria by which decisions pertaining to the extension of historic districts are made." Petition,
fl6 (emphasis in the original). There are, in fact, procedures and criteria in place for the review
of RFEs on the LPC website. There is no different process for boundary extensions. The
procedure is the same for all RFEs, regardless of what landmark category is being considered. In
addition, the criteria for designation are clearly spelled out in Landmark Law $ 25-302.
"Whether u pb.son seeking relief is a proper party to request an adjudication
is an aspect of justiciability which when challenged, must be considered at the outset of
any litigation." Society of the Plastics Industry v. County of Suffolk,7l NY2d 161 , 769
(1991), (hereinafter Society of Plastics) citing Matter of Dair)'lea Coop. v. Walklelr, 38 NY2d
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6,9 (1975); Collella v. Bd. of Assessors, 95 NY2d 401 (2000); Transactive Corp. v. NYSDSS,
92 NY2d s79 (19e8).
It is well-settled that petitioners bear the burden of establishing standing. To do
so, petitioners must demonstrate that they will suffer an injury in fact that is different from that
of the public at large and that the alleged injury falls within the zone of interest sought to be
promoted by the statute under which the governmental action was taken. See. e.g, Roberts v
Health & Hospitals Corp., 87 AD3d 311 (lst Dep't 2011) (citing, New York State Association of
Nurse Anesthetists v. Novello, 2 NY3d 207, 211 (200\; see also, Societ)¡ of Plastics Industries
v. Count)' of Suffolk,TT NY2d761,762-73 (1991); Sierra Club v. Morton,405 US 727,732-33
(1972). Injury-in-fact means that the petitioner will actually be harmed by the challenged
administrative action; that the injury is more than conjectural. The "zone of interest" test
requires the petitioner to show that the injury in fact falls within the zone of interests sought to be
promoted or protects by the statutory provision under which the agency has acted. It ties the
injury asserted to the governmental act challenged, thus limiting the universe of persons who
may challenge an administrative action. Society of Plastics ,7l NY2d at 773; see also, Sun-Brite
Car Wash Inc. v. Bd. of Zoning and Appeals, 69 NY2d 406,414 ( l9S7).
The fact that Tribeca Trust is an organization, and not an individual does not
relieve it of the requirements of compliance with the standing requirements. "If an
association or organization is the petitioner, the key determination to be made is whether one
or more of its members would have standing to sue; standing cannot be achieved merely by
multiplying the persons a group purports to represent." Societ)¡ of Plastics, supra 77 Ny2d at
775; see also. Matter of Dental Societv v. Carey, 6l NY2d 330 (1984).
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Neither petitioner here has met the Sierra Club standing requirements because
neither has made the requisite allegation that its members have suffered a direct injury-in-fact,
different from the community at large. The Supreme Court requires that the party seeking
review "be among the injured, for it is this requirement that gives a litigant a direct stake in the
controversy and prevents the judicial process from becoming no more than a vehicle for the
vindication of the value interests of concerned bystanders." US v. SCRAP,412 U.S. 669,681
(1e73).
The fact that Tribeca Trust alleges that it is a group whose goals include, among
other things, the preservation of "Tribeca's historic scale," Petition, fl9, is alone insufficient to
give it standing. "Interest and injury are not synonymous." NYS Ps)¡chiatric Ass'n v. Mills,
29AD3d 1050 (3d Dep't 2006). "That an issue may be one of 'vital public concern' does not
entitle aparty to standing." Society of Plastics, supra,77NY2d at769. In Lujan v. Defenders
of Wildlife, 504 US 555 (1992) a wildlife conservation group's claim that they had an
interest in endangered species with no injury-in-1äct, did not give them standing to challenge
endangered species regulations. Similarly, in Sierra Club v. SCM Corp,747 F2d99 (2dCir
1984), the fact that the petitioner group wanted to preserve the environment alone would not give
it standing without actual injury. As the SCM Corp. couft notes; "The Morton Court (Siena
Club) . . . ruled that an organization whose members were not injured, but merely interested,
could not [sue]. [A] mere 'interest in a problem' no matter how longstanding the interest and no
matter how qualified the organization is in evaluating the problem, is not sufficient by itself to
render the organization 'adversely affected." Id. aI104.
In Citizens 70 AD3d
57 6 (l't Dep't), leave denied, l5 NY3d 710 (2010), the Appellate Division reversed the finding
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of the Supreme Court, holding that the organization and its mernbers who were "dedicated to
preservation," failed to demonstrate standing to sue. It too noted that "interest and injury are not
synonymous. . . . A general - or even special - interest in the subject matter is insufficient to
confer standing, absent an injury distinct from the public in the particular circumstances of the
case. . . . The petition does not allege that petitioner's members have been affected differently
from any other members of the public." Id. at 576-77 (citations omitted). Similarly, in Heritage
Coalition. Inc. v . Citv of lthaca Plannins and Development Board. 228 AD2d 862 (3d Dep't
1996), the court found that despite the goals of the petitioner historic preservation corporation,
the appreciation for the historic importance of a particular landmarked building, did not give it
standing. The petitioner's appreciation for historical and architectural buildings was held not to
"rise to the level of injury different form that of the public at large for standing purposes." Id. at
864. Such is the case here.
Significantly petitioners here do not plead with any specificity what their injury-
in-fact is with regard to the Commission's process that resulted in its declining to advance their
proposals. Ellsworth assefis that she "walks the Tribeca Historic Districts in appreciation of
their historic, cultural and architectural values." Petition, fl13. Her appreciation is not different
from the thousands of New Yorkers and visitors who walk those same streets. Nor has Tribeca
Trust articulated any particular injury in fact arising from the acts of the Commission.
Petitioners have failed to show that their injury is different from that suffered by
any member of the public. As the Court of Appeals held in Burns Jackson Miller Summit &
Spitzer v. Lindner, 59 NY2d 314,334-35 (1983) (authorities and citations omitted):
When the injury claimed to be peculiar is of the same kind suffered

by all who are affected, when it "is common to the entire
community" ... or as Prosser put it . . "it becomes so general and
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widespread as to affect a whole community," the injury is not

peculiar and the fprivate] action cannot be maintained.
There must be a "clear line of demarcation setting petitioner as a class distinct
from the public at large . . . coupled with some credible showing of special damages ... fin order
to] justify the conclusion that they have standing." ew York
et. al., 48 AD2d 69 (1't Dept. 1975). In Abrams, a parents' association did not have standing to
sue the New York City Transit Authority to compel them to control the noise on the subway,
even though the school association it represented was located nearby the subway, because "[t]he
class to which (plaintiffs) belong is so broad as to encompass virtually all residents of the
City." Id. at 70.
In Save C)ur Main Street Buildinss v. Greene Countv Lesislature. 293 AD2d
907 (3d Dep't 2002) a historic preservation group, similar to Tribeca Trust, alleged that the
environmental review of a project which would result in the demolition of ten buildings in an
historic district caused it injury in fact. The proceeding was dismissed on standing grounds
because the injury alleged, loss of scenic view, would be no different for the group's
members than for the public at large. See also. NAACP v. Acusport Inc., 271 FSup p2d 435
(EDNY 2003) (African American Association did not have standing to sue gun
manufacturers since their injury was no different from that of public); 532 Madison Avenue
Gourmet Foods v. Finlandia Center. 96 NY2d 280 (2001) (injury of properly owner, no different
than that of others in neighborhood, did not have special damages.) Similarly here petitioners
have shown no special injury, distinct from that of the public at large, that the Commission's
decision declining to advance their suggestion to consider extending the boundaries of three
Tribeca historic districts has injured them in any way distinct from the injury to the public at
large.
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Thus, even conceding that petitioners' claims are within the zone of interest to
be protected by the Landmarks Law, as they have failed to show any injury in fact distinct
from that of the general public, they do not have standing to challenge the Commission's
determination to decline to advance the RFEs to the full Commission for consideration.
POINT II
ANY CHALLENGE TO THE CURRENT
BOUNDARIES OF THE TRIBECA HISTORIC
DISTRICTS IS TIME BARRED.
Even if petitioners had standing to commence this proceeding challenging LPC's
decision, to the extent the petition can be construed as challenging the original boundaries of the
Tribeca historical districts at issue here - North, East and South -- as designated in 1991 and
1992,Ihe time to challenge those determination has long passed and any such challenge is time-
barred.
An Article 78 proceeding challenging an administrative determination is time-
barred if it is commenced later than four months after the determìnation becomes final and
binding. CPLR $ 217; see e.g., New Y 2t8 AD2d 592,594
(1't Dep't 1995); Lenihan v. City of New York, 85 AD2d 562 (fi Dep't 1981), affld, 59 NY2d
679 (1982). A party wishing to contest the configuration of these districts was obligated to file
an Article 78 proceeding within four months of the decision becoming final and binding.
Petitioners did not do so.
And, to the extent petitioners' RFE can be construed as asking for reconsideration
of the original decisions rendered more than 25 years ago, the matter is similarly time-barred.
Both the Court of Appeals and thê Appellate Division, First Department have held that a request
for reconsideration of an administrative determination does not extend the applicable statute of
limitations - and certainly not for 25 years. See, DeMilio v. Borghard, 55 NY2d 216,219
-l 8-
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(1952); Tamarkinv.NewYorkCityDepartmentof Education,44 AD3d502,503 (l'tDep't
2007); Eldaghar v. New York City Housing Authority, 34 AD3d 326,321(1't Dep't 2006.).
POINT III
PETITIONERS CANNOT COMPEL THE
COMMISSION TO PROMULGATB RULES
WHICH IS A DISCRETIONARY ACT.
Mandamus is an extraordinary remedy used to compel performance by an
administrative body or offìcer of a duty positively required by law. Hamptons Hosp. & Medical
Center. Inc. v. Moore, 52 NY2d 88 (1981); Gimprich v. Board of Educ., 306 NY 401 (1954). If
the body or officer has some discretion regarding the act sought to be performed, and an absolute
right to the relief sought cannot be established, mandamus will not lie. Garrison Protective
Servs.. Inc. v. Office of the Comptroller, 92 NY2d 132, 736 (1999); Hamptons Hosp., 52 NY2d
at 745; Police Conference of New York, Inc. v. Mqntcipal Trainins Cou , 51 NY2d 810 , 810-
81 1 (1e80).
The party seeking mandamus must demonstrate a "clear legal right to the relief
sought." Harper v. Angiolillo, 89 NY2d 761,765-768 (1997); Altamore v. Barrios-Paoli, 90
NY2d 378,384 (1997). Mandamus will not lie to compel an act as to which an official may
exercise judgment or discretion, for the exercise of discretion means that one has no clear
legal right to the relief sought. In re Lorie C.,49 NY2d 161, 171 (1980); Posner v. Levitt,
37 ADzd 331 (3d Dep't 1911).
Petitioners herein seek factually demand] an order requiring the LPC to "establish
a procedure and criteria" by which RFEs are evaluated. Petition, fl 6. The case law,
however, clearly demonstrates that the LPC has complete discretion to determine which building,
interior, district or improvement it will advance to the Commission to calendar for consideration.
Absent any evidence that the determination was made for an improper motive, the coufts must
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defer to the Chair's determination. Anon)rmous v. Commissioner of Health,2l AD3d 841 (l't
Dep't 2005). As such, mandamus relief is unavailable to petitioners as they cannot compel the
LPC to perform a discretionary act. The fact that the Commission has such broad discretion
provides no basis for petitioners to be entitled to an order directing the Commission to set forth
guidelines on how it actually exercises that discretion.
Pursuant to Charler $ 3020, the LPC is vested with the sole authority and
discretion to designate landmarks and historic districts within the City, subject only to
modification and disapproval by the City Council and the Mayor. See also, Landmarks Law
$ 25-303. In addition, the Commission's rules, 63 RCNY $ 1-02, provide that the LPC "may,
upon adoption of a motion, calendar an item to be considered for landmark designation."
(emphasis added).
The Court in Stahl York Avenue Co.- LLC v. Ci ty of New York. 2015 US Dist
LEXIS 66660 (SDNY 2015), affirmed, Stahl York Ave. Co., LLC v. City of New York
Landmarks Preservation Commission, 2016 US App. LEXIS 4209 (2d Cir. Mar. 7, 2076) has
noted the strong distinction between the use of "the word 'shall,' as compared to words such as
'may,' in regulations directing governmental action in the context of land use or zoning matters."
The District Court in Stahl cites to Deane v. Citv of New York Department of Buildines. 177
Misc2d 687,695 QrlY Co,. 1998), observing that "the use of the word 'may'in the Landmarks
Law vests the [LPC] with discretion over all acts taken or made pursuant to that provision." And
as further noted in Deane, no provision of the Landmarks Law requires the Commission to
consider any request for landmark status that is submitted to it. To the contrary, the Commission
has "unfettered discretion" to decide whether to calendar an item to be considered for landmark
designation. In Deane" the court further concluded that the fact that the Commission "must apply
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stated statutory criteria in deciding whether a calendared building ought to be a landmark does
not mean that it must go through the lengthy formal consideration process with respect to every
single application that is submitted to it." Id. (emphasis added)
By its very nature, the RFE process is discretionary, in that it involves the
exercise of a great degree of expertise and judgment, and is not mandated by any provision,
explicit or implied, of the Landmarks Law. Mandamus is therefore simply unavailable to compel
the LPC to promulgate rules to govern how such determinations are made. Courts that have
considered the issue have confirmed that LPC possesses "unfettered discretion" in deciding how
to deal with requests from the public to have certain resources designated as landmarks. Further,
LPC is not required to create any sort of record as to any decisions made in response to those
requests. See, Citizens Emergency Committee to Preserve Preservation v. Tierney, 70 AD3d
576 (1't Dep't), leave denied, 15 NY3d 10 (2010); Landmark'West! v. Burden, 15 AD3d 308 (1't
Dep't), leave denied,5 NY3d 718 (2005); Deane v. City of New York Department of Buildings,
177 Misc2d 687,695 (NY Co,. 1998).
Pursuant to its own voluntary intemal procedures, LPC considers suggestions
from the public of buildings and areas for designation. Carroll Aff., IT 16-20; Presa Aff., T15.
The LPC follows ceftain practices for processing and evaluating RFEs, as described on the LPC
website. As noted by the Courts, there are no statutory provisions which require any particular
action on the part of the LPC with respect to an RFE. There is no provision that requires a
review by the full Commission instead of the RFE Committee, or that a public hearing be held on
every RFE, or any RFE. Consideration of a request from tlie public is a purely discretionary act
left to the judgment of the LPC. In fact, LPC is not even statutorily required to consider RFEs
and could modify or discontinue the program if it so chooses.
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Since LPC has complete discretion to determine its calendar and priorities,
mandamus is unavailable to petitioners here. See. Williamsburs Independent Peoole- Inc. v
Tierney, 91 AD3d 538, 538 (lst Dep't 2012) (dismissing a petition seeking to compel the
presentation of petitioner's RFE for the Domino Sugar Refinery to the full Commission);
f-ifizenc Frneroencr¡ Committee to Preserve Þraacn¡qfinn r¡'|-ierner¡ 70 AD3d 576, 577 (lst
Dep't), leave denied, 15 NY3d 710 (2010) (holding that there is no statutory requirement that the
Commission adhere to a particular procedure in determining whether to calendar a property to be
considered for designation); Landmark West! v. Burden, 15 AD3d 308,309 (1st Dep't), leave
denied, 5 NY3d 718 (2005) (holding that the Commission has broad discretion in controlling its
calendar for public hearing); Save St. Vincent de Paul v. Tierney, Index No. 100914/10
(Supreme Court, NY Co. April 15,2010) (a copy of which is annexed hereto as Appendix l)
("The LPC has complete discretion to calendar and to decline to calendar applications for
landmarks designation."); Suckenik v. Koch, Index No. 20281/79 (Supreme Court, NY Co.
1980) (a copy of which is annexed hereto as Appendix 2) (dismissing a petition seeking to
mandamus Commission to consider the designation of the Helen Hayes theatre as a landmark as
the "matter being entirely within the discretion of the Commission, mandamus does not lie under
CPLR 7803(1)."); Deane v. City of New York Dep't of Buildings, 7'77 Misc2d 687, 695 (Sup.
Court, N.Y. Co. 1998) (dismissing a petition seeking to mandamus Commission to consider the
designation of a group of buildings after the court found that "[it] has no power to compel LPC
to entertain the application for landmark status" and that "the purely discretionary decision . . . .
not to refer the matter to the full Commission . . . is insulated from.judicial review."); Save the
Cottases and Gardens v. Ci fv of New Yor k (Sup. Court, NY Co. 1998) (a copy of which is
annexed hereto as Appendix 3) (dismissing the petition seeking to mandamus the Commission to
11
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consider a premises for landmark designation after finding that "the determination of whether to
calendar a landmark application lies entirely within the unfettered discretion of the LPC.").
In each of these cases challenging the Commission's decision, made pursuant to
its procedure for review of RFEs proposed by the public, the proceeding has been dismissed
upon a finding that there is no basis to compel LPC to advance an application for consideration
as a landmark. The petition herein presents nothing to veer from this precedent. Indeed,
petitioners' claim seeking mandamus relief against LPC must also be dismissed as a matter of
law because LPC acted legally and within its legal discretion, and in accordance with the
procedures set forth on its website, in concluding that much of the proposed area did not merit
designation and declining to advance, at this time, the one small area that the RFE Committee
concluded might be eligible as an extension. This determination was rational and legal, and was
not arbitrary or capricious or an abuse of discretion.
Petitioners seek to differentiate their situation from the precedent cited above by
arguing that without promulgating criteria it is impossible for a court to review the agency's
decisions. That is incorrect. Courts have recognized the broad discretion accorded to the agency
under the Landmarks Law, and acknowledged the need for maximum discretion in making
internal judgments based on agency expertise, the agency resources and priorities, and other
factors, such as community and political support. They have had no difficulty reviewing LPC's
RFE decisions properly through the lens of Article 78 arbitrary and capricious standard and
determined whether there was any misconduct. To date, as cited above and acknowledged by
petitioners, Petitioner's Memorandum of Law ("Pet. Mem.") aT 74, no court has held that the
Commission's RFE decisions were arbitrary or capricious or otherwise improper. Petitioners
offer no reasoning to justify their demand for LPC to adopt rules setting forth criteria for
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consideration of RFEs. Because LPC has such broad discretion and wide latitude, it would be
inappropriate to set forth specific criteria and petitioners cannot show that they are entitled to
such.
Petitioners rely on Nichols v. Kahn, 47 NY2d 24 (1979) for their argument that
LPC's lack of "rules or decision criteria" for RFEs makes any decision regarding an RFE
arbitrary and capricious. Pet. Mem. at 8-13. Petitioners are mistaken. In Nichols, the Court
objected to the existence of a rule and the availability of an exemption from that rule without any
criteria with which to make a determination as to whether an applicant was entitled to the
exemption. The Court found that this lack of guidance "was arbitrary and capricious as a matter
of law." Nichols, 47 NY2d at 28. Similarly, in Holmes v. ew York Citv Housin s Authoritv-
398F2d262 (2d Cir. 1968), the Court found that absence of any standards by which applicants
for public housing are chosen was an "invitation to abuse." Id. at 265, Here too there was a
mandate - requirements set out in the Public Housing Law - governing the procedure. Vy'hat was
absent were any criteria at the state level to make the determination. In each of the cases cited by
petitioners there was a clear legal mandate or statute in place requiring an outcome, but the law
did not provide criteria by which to make a determination. The case here is easily
distinguishable in that there is no mandate that the Commission review any suggestions from the
public. There is no statute, regulation, or memorandum of agreement. The RFE process is
entirely voluntary and can be discontinued at any time without running afoul of any provision of
law. That being said, however, thete are, in fact, criteria in place. Those criteria are found in the
Landmarks Law, and the agency's decision, based on those criteria, were articulated in the
LPC's determination letter. How LPC exercises its judgment in applying the statutory criteria is
not something that is necessary or appropriate for agency rules. In addition, courts have
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recognized that LPC's resources and priorities are valid criteria, just as much as its finding, after
review, that the proposals were not aligned with those priorities at this time.
The Research Department and RFE Committee expend a great deal of time
reviewing properties being considered for designation, including those suggested by the public.
As noted, advancing a property to the full Commission requires a full report that forms the basis
of the designation report in the event the matter is set forth for a public hearing. Carroll Aff., f
13. It is only once a proposal is before the Commission that the rules with respect to designation
of landmarks, as set forth in the Landmark Law, are triggered.
Nonetheless, petitioners in the instant case are seeking to compel the Commission
to exercise their discretionary authority to promulgate other procedures and additional criteria for
evaluating Requests for Evaluation. As the aforementioned cases clearly establish, however,
petitioners have no right to such relief. Accordingly, the petition fails to state a cause of action
for mandamus against the respondent and it must be dismissed in its entirety.
POINT IV
THE DECISION TO DELCINE TO ADVANCB
PETITIONERS' PROPOSALS TO THE
COMMISSION TO BE CALENDARED \ryAS
NOT ARBITRARY OR CAPRICIOUS OR AN
ABUSE OF DISCRETION.
Petitioners also seek to have this Court annul the challenged decision, and have it
remanded to LPC to be reconsidered under a procedure they deem to be "based in reason and
rationality." Petition, u6. Petitioners are not entitled to such relief, as the determination was
rational and proper in all respects, and was not in violation of lawful procedure, affected by an
error of law or was arbitrary and capricious or an abuse of discretion. CPLR $ 7803(3).
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Standard of Review
Administrative agencies enjoy broad discretionary power when rendering
determinations on matters they are empowered to decide. Judicial review of an agency's

exercise of discretion is limited in scope. Where, as here, there has been no "hearing held
pursuant to direction by law," the only issue before the Court in an Article 78 proceeding is
whether an agency's determination "was made in violation of lawful procedure, was affected by
an elÏor of law or was arbitrary and capricious or an abuse of discretion. . . ." See CPLR $7303
(3); Civil Service Emplovees Association- Inc.- et al v. New York State Pu Emolovment
Relations Board, 300 AD2d 929,930 (3d Dept. 2002).
An action is arbitrary when it is taken without sound basis in reason and without
regard to the facts. The arbitrary or capricious test therefore, "chiefly 'relates to whether a
particular action should have been taken or is justified . . . and whether the administrative action
is without foundation in fact."' $cs, Pell v. Board of Education, 34 NY2d 222, 231 (1974)
(quoting. 1 NY Jur., Administrative Law, $ 184, 609). When the reviewing court is asked to
determine whether an administrative agency's determination can be allowed to stand, it "may not
substitute its own judgment of the evidence for that of the administrative agency, but should
review the whole record to determine whether there exists a rational basis to support the findings
upon which the agency's determination is predicated." Purdy v. Kreisberg , 47 NY2d 354, 358
(1979); see also. 300 Gramatan Avenue Associates v. State Division of Human Rishts. 45 NY2d
176, 182 (1978); Pell v. Board of Education, 34 NY2d ar.231; Tocci Brothers v . Trade 'Waste
Commission,25l AD2d 160 (l't Dep't 1998); Marsh v. Hanle)',50 AD2d 697 (3dDept. 1975)
As noted in Deane v. of New York Deoartment of Buildinss. l7l Misc2d

681 , 697 (Supreme Ct. NY Co. 1998), "[i]f LPC has complete discretion to calendar a request or
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to deny an application for calendaring, it stands to reason that there is nothing arbitrary or
capricious about not calendaring it." Moreover, courts have routinely deferred to the LPC when
making decisions within its experlise. See. e.g.; Teacher Insurance & Annuity Association of
America v. City of New York, 82 NY2d 35,44 (1993); I,utheran Church of America v. City of
New York, 35 NY2d 121,128 n.2,133 (1974); Citi-Neighbors Coalition v. LPC, 306 AD2d 113
(1't Dep't 2003); Shubert Organization Inc. v. LPC,166 AD2d 115 (1't Dep't 1991), appeal
dismissed. 78 NY2d 1006 (1991), cer1. denied,504 US 946 (1992); Committee to Save the
Beacon Theatre v. City of New York, 146 AD2d 347 (l't Dep't l9S9); Societ)¡ for Ethical
Culture v. Spatt, 68 AD2d 112 (l't Dep't 1979), aff d, 51 NY2d 449 (1980).
The Decision Easily Meets the Standard of Review
In this matter, the review of petitioners' RFE was handled in accordance with the
procedures posted on the LPC website. After reviewing the RFE and all the information
submitted by petitioners, and conducting its own research, the RFE Committee, together with the
Chair, determined that petitioners' proposals to extend the existing boundaries of the three
Tribeca districts at issue would not be advanced to the Commission to be calendared. The Chair
explained the decision in this way R. 594:
. . . Much of the area was found not to merit designation beyond a

small section of fewer than ten buildings in the nofihwest corner.
Based on our agency priorities and the level of existing landmark
protection in the area, we do not plan to advance an extension of
the Tribeca districts at this time.
It is important to note that already over 640/o of lots in Tribeca are

designated landmarks within historic districts. The LPC
comprehensively evaluated a larger area in the 1980s and early
1990s which resulted in the designated districts Tribeca North,
West, East and South in 1991 and 7992. The Commission studied
the area again in 27002, finding a small southern section
meritorious which we designated as Tribeca South Historic District
Extension.
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The Chair's decision that the petitioners' RFE would not be added to the
inventory of those resources that may, sometime in the future, be presented to the Commission
for formal consideration must stand, as the determination is rational and reasonable, supported
by the record as a whole, and in accordance with all applicable laws, rules, regulations, and
agency practices. Further, being added to this category ofpotential resources for consideration is
no guarantee that it will ever be presented to the Commission. The decision whether to move
something forward is made by the Chair in consultation with the .þxecutive l)irector, the l)irector
of Research and the Director of Special Projects and Strategic Planning. Carroll Aff.,1[9.
The process that moves a proposed resource into a group that may be presented to
the Commission in the future is the same, whether that resource was identified through staff
surveys and research or through the RFE process. In both cases, the Cahir, as the only full-time
paid Commissioner, is responsible, with the assistance of the LPC staff, for reviewing and
winnowing through potential resources. It would be impractical for the full Commission to
review every submitted RFE and every property identified by the Research staff to decide what
proposals to bring forward. While this ultimate decision-making has been delegated to the Chair
on a day-today basis as a practical matter, any Commissioner can, pursuant to 63 RCNY $ 1-02,
make a motion to calendar any item. Carroll Aff., T 9,37.
Clearly, petitioners' characterization of the Chair's decision as a "Unilateral
Determination" is completely unwarranted. While the Chair, who is charged with overseeing the
operations of the LPC, makes the final selection on what items to include in the category of
potential buildings.or areas that may be presented to the Commission, she does not do this in a
vacuum, or on a "whim," as petitioners suggest. Petition, tl6. This is done in consultation with
the Director of Research, the Executive Director and other senior staffl, and after the Research
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Department has reviewed the materials submitted and, where necessary, as in this instance,
conducted its own research andlor site visits and made recommendations to the Chair and senior
staff. The decision is based on a variety of factors, including merit under the criteria of the
Landmarks Law, relative significance, how the resource fits into agency priorities, agency
resources, and threats to the building or area. Carroll Aff., TIT 9,37 .
The process is rational and the decision here was reasonable. The boundaries of
the original districts were "carefully considered and were based on a building-by-building
evaluation." R. 1. That evaluation revealed that the area proposed by petitioners encompassed
"a wide variety of buildings of different construction dates, styles and typologies." R. 1. It was
determined that the proposed areas included in petitioners' RFE contained too many non-
contributing building, altered buildings and vacant lots to warrant recommending expansion of
the Tribeca districts. Carroll Aff., f[ 36; Presa Aff., I21. Accordingly, petitioners'proposals
were not added to that pool of items that may later be presented to the full Commission to be
calendared for consideration.
Calendaring is the first formal, legally mandated step in the designation process.
The full Commission votes at a public meeting whether to schedule a public hearing on
designation proposals. The review of RFEs, and of resources presented by members of the LPC,
by the Research Department and RFE Committee are preliminary to this mandated first step. As
noted in the caselaw, the coutts have declined to reverse an LPC decision absent any evidence of
bad faith, recognizing the LPC's "broad discretion in controlling its calendar without the
necessity of creating a public record in that respect." See also, Citizen's Emergency Committee
v. Ti 70 AD3d 576 (l't Dep't), leave to appeal denied, l5 NY3d
710 (2010); Landmark West! v. Burden, t5 AD3d 308 (1't Dep't), leave to appeal denied,5
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NY3d 718 (2005) (holding that there is no "merit to the contention that the ILPCI was obligared
to hold a public hearing before declining to calendar a request for designation as a landmark.").
Nor has this process violated petitioners' due process rights, as alleged. Petition,
'1T70. Their proposals were reviewed in accordance with the RFE procedures. Members of the
Commission met with Tribeca Trust to discuss the proposals at least twice. The proposals were
discussed internally at meetings of the RFE and Research Departments at least six times, in
addition to informal meetings with the Chair and senior stafI. Petitioners submitted additional
documentation that was also reviewed. As noted by the Court in Deane, 177 Misc2d 687,696
(NY Co. 1998), "petitioners (seeking to have a property calendared) have no constitutional right
to any form of due process, wither substantive or procedural in this matter. It is well settled that
one cannot have a property interest that is protected by due process if the matter that gives rise to
that interest is discretionary." Similarly, petitioners here have no property right to any historic
district being advanced to the Commission to be calendared, or even included in that group of
resources that may be considered by the Commission in the future. Thus, there has been no due
process violation.
The RFEs were properly reviewed by the RFE Committee and the Chair. See
generally, Presa Aff. Mr. Presa reviewed all the materials submitted and walked the proposed
areas. His findings were presented to the RFE Committee and the Chair regarding petitioners'
proposed extensions, and it was determined that other than a very small area north of Tribeca
North, lacked integrity sought in an historic district due to too many non-contributing or altered
buildings or vacant lots. Presa Aff., I,1T 10-12,21.
The Landmarks Law requires that designations not be arbitrary or capricious. To
the extent petitioners are trying, through their experts, to point to their own factual conclusions to
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undermine those determinations, made in 1991 and 1992, in an attempt to manufacture an
appearance or irrationality, petitioners' efforts fail. The affidavits from petitioners' experts claim
to show that the decision was not rational because (l) buildings similar to those within the
designated districts exist outside these districts; (2) that architects who designed buildings that
are within the designated districts also designed buildings that lie outside of those districts, and
finally that, in petitioners' view, (3) some of the boundaries of the existing districts do not make
sense because they don't follow natural boundaries, include all corners of an intersection, or cut
a block in half. Notwithstanding that none of these standards are found in the Landmarks Law,
Mr. Presa addressed each of these observations and arguments in his affidavit at flfl 24-30. He
found most of the comparisons to be inapposite.
For example, some of the buildings compared by petitioners' experts are far apart,
and not even proposed to be in the same historic district extension. While petitioners' experts
claim that buildings fall on different sides of an existing boundary, none of the paired building
comparisons [shown in petitioners' Exhibit 1 1], are adjacent to each other. Presa Aff., T 24. It is
further noted that the fact that a building by a particular architect is included in an historic
district does not mean that all work by that architect should be similarly designated. Presa Aff.,
TI 25, 26. Nor is there any basis to petitioners' claim that the boundaries are irrational. Presa
Aff ,flfl27,28,29,30. Mr. Presa notes, Presa Aff., fl 30:
The Commission generally draws very tight district boundaries that

seek to include the "best-of-the best" while minimizing non-
contributing buildings. While we will start with straight and simple
boundaries, we strive to identify and include in the proposed
district the best buildings and exclude those that don't or only
marginally contribute architecturally. Blocks that have a high
percentage of altered or noncontributing buildings are excluded
even if there are some buildings on the block that are or might
contribute to a potential district.
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As is clear from the June 7, 2076 letter, the decision declining to advance
petitioners' proposals to extend the Tribeca Historic District boundaries was rational and proper
in all respects. It was not a "unilateral determination." It did not violate petitioners' due process
rights. The comparisons presented by petitioners do not alter this fact. There was no improper
disparate treatment of similar buildings, or buildings by the same architect, omissions of
buildings, or improper gaps in the boundaries that were established in the early 1990s.
The decision was made in accordance with procedures followed by the
Commission for the review of RFEs. It is noted that the review of RFEs is the same as for
resources identified by LPC staff. Carroll Aff., T 31. While petitioners'experls may disagree
with the LPC as to the relative importance of certain structures, that does not make the
determination arbitrary or capricious. The Commission had a rational basis for its determination.
And despite petitioners' insinuations to the contrary, there is no evidence whatsoever that the
determination was influenced by "political and monetary considerations suggestive of
corruption." Pet. Mem., 2,l5-I8, and exhibits referenced therein. Such a claim has no basis in
law,, or fact, or reality and should not be considered by this Court Accordingly, the
Commission's decision should be upheld.
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CONCLUSION
For all the reasons set forth herein, and in the accompanying Verified Answer,
Affidavit of Sarah Canoll and Affidavit of Donald Presa, the Commission's decision, as set forth
in the June 7, 2016letter, should be upheld, the petition denied, and the proceeding dismissed in
its entirety.
Dated: New York, New York

Iuly 28,2017
ZACHARY W. CARTER
Corporation Counsel of the
City ofNew York
Attomey for Respondents
100 Church Street
New York, New York 10007
(2r2) 3s6-2t78
By
Louise Lippin
Assistant Corporation Counsel
-5 -t-
33 of 48
APPENDIX 1
34 of 48
SUPREMF couRï oF THE srATE oF NEW yoRK * NEw yoRK couNw

PRESENT: û. Þp sf.tE
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35 of 48
cOIafTy OF NE'w YORK: IAS fÄRT 6t

I¡ tls M¡.tter of tbcApplÍcation of
s,t\lE sT. vrNcENl Ð& PAUL, rNC., CITTZENS DECISION, ORDER

EMERCENCY COMMITTEE TO TA.ESERYB AND JUDGMEF{T
PRESERVÀTÍON, OLGA SÎATZ FRÁ,NCOISE
CASTAC, CLEMENT IVIAOM ¡td ÇHAI{TAL BoIssET, Index No. 100914åûf0
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For r Judgnspt F¡ruu¡¡t þ Aüåe¡ê ?8
of the Çiyft Pr¡cttcs Lay ¡n¡l ltulr¡
ROBüRT ã, TI&RNÊY, rr Chnlnråû of tb.o No* York

Çlty Lrndmrrk¡ Prr¡arvsdon Conmirslon, g'lrd [{ARY
BETII BETT$ s¡ llírsctor of ß¿ærrçb of thc Ncrr Yortr
City Lrndm¡rla Preuo¡yatlo¡ Conml¡¡ion,
Røpondontr.
SIüR'IVOOÐ,.I.¡
Fctitionas lncludu individuals wbo v/orvbip f'(&urch'). Tt"y

at St. Vfncc¡rt dc Paul Church
cËck to rç$¡¡fË rcspondcntr to place thsir fuquest for Eva}ration ("RFÞ') for po*ible dcrignation
of the Churçh as ¡ låndmsr¡r on tho oalcnd¡r of ths Ner¡i' Yor* C¡ty Lâüdnarls }rescryation
Commlssion ("LpC'or'Çoruni¡sion') so thâtthe RFE can bc discussçd befqrê thc Comol¡¡iou
at a prblic rneoting. Fctitioner¡ ass6r¿ thqt tåc det¡rmlnatlon of rerponden! Robcrt Tlomcy, as
chairm¡n of ths Lpc, not to .,cal€ndnf' petitioners, r(F! inrpruperþ rxur6 the dçcisioÍ8l ei¡thority
of thc LPC. It is allcged that auy suah determin¿tion must bc r:rade by tho LPC, Pctitionas atsa
assertthatgivc,lr tåc ¿rctritcctrual a¡rd çuftural sfgnificanccofthc Chr¡¡chparricularly when compared
witb othellandmuks dosþnatiors nrade by the [.PC, Tiemey's dccísion ¡qû to con¡idøtbo Ch¡rrch
for designatlon snd his rçftsd to place thr m¿ttsr on thÇ calcndar for considerarion of ths fi¡ll
Com¡nission r¡ns ¿rbieary and caprieious, 1
Frcm timc to tims cltize¡¡s eccking to secu€ destgnatíon ofsbustures in Ncw York Crry ¡s
land¡nuft* heve sought to enli$ tha courts tô requirc the IJC to "c¡10¡d¡r" favûcd RFE's and to
e'd xHi l3rdtsH-l dH ¿o ¡ t tlo¿ o¿ ¡du
36 of 48
hold puÞlic hearilrg! orl the me¡lt¡. The courts bave d¿olíncd tåc Jnvitstion abeent widcncs that thc
Commíse ion ha¡ sõtÉd in b€d tatth(see e.g, Cltlzens Emørgency Cotnmitrçç to prese¡w prosemation
v.Tíerney,.-- AÐ3d .gg6Nys2d4llldneyt2nrcJl^c*Cpp,,lfRccognizingl.pc,s,,b,road

discrctioo in corüoll¡¡g ils oalcndar withour the ncces$ty of *eating a pubiic record in that respcct"
and rdcctlng chsllenge to. the faitun of the tPC to tnkc açtiun 0n rËgïests for latds¡arks
derignation'71 I¿tdnttrtc west! v, Burdsn, 15 AD3d 308 [lr Dspt] /v dented 5 t{y3d 7ls
[2005jli{Dldi¡g.thøtthcreis¡o "moritro the co¡tørtionùattha [LPC] wæ oblignted to holdapublic
¡ea¡ing bcfore declÍning to cqlmde¡ a rÈqu¡$r for ,,, rlesignatiçn ss land,mnrï,]).
e
Thcre ig no meritto the olaim th¿t the LPC c.hsi¡mpn lsÐla authorityto dsterrdüpwhich
of
ttrg hru¡dred¡ ofrequcsfs lb¡ l¡¡rdmark¡ dcsígnation ahould be
cate¡dårÈd fs csnsideration by thc
ftúl corlImhrion, Th¿t ar8l¡tïlüttt rta¡ mada to thc appølleta division i^ c\ppand
was rejætcd by
tlro corrrt isae alw, l'anúmqrk& W€rl l,
wpra [deftning declrions to chairrnan] and Cttyaf Nnt york
v' 10-,12 Coopcr ígture,7 Micc34?53 [Sup Ct NY Co 2004J[doftring b rqport ortÞe
¡uff
marnborD. Furthør, petitionen sæ mictalceû inthei¡ bcllcfth¡r rbc
¡crcarl¡g!rccod¡rn uåd huo
constitr¡tc¡ a uauqpafion of the powan uf tt¡c comrq¡Ðg¡onçrs, ¡¡¡,t oral årguücnt on ùc pctldo¡ ¡¡d
crotr moiio4 coru'ôl fÕr rcqpond'ru confirmod that any corrunissioner u.1øy rBquçsÌ yqte t0 plaße
H
s r4Etter oo
lhpLPC sslsnd¡r. Jf thc m¡¡ær l¡ votcd hy tha Corursirsíå¡ it .¡yould bo placod qq ths
calendg for con¡ld*ration'at a public me€ting,
Pctilioncrc acknowlcdgcrrr thoy riusl th¿tthcLPc ia ur agancyoat has expæl¡e inlùe qrea
ofl¡ndma¡king and ttut tbc courts have no rutbority to ¡ccond guoss the Comrnl¡.çi<¡n,ü
landmerlß
designåtion ilecíslon¡ (see, e,g, Commlges ro $dyd the Beacon Theqier.v,
Ctty of New yorlç 146
AD2d 397 [I't Dûpt 1989]). The LPC h¡s coalpløto dlscrction to calendar
md to dccline to calcnd¡¡
apBligations for l&dmarks designalion. Purçunnt
to the pracriccs of tbe CommissÍon, the cbairnrørr
ordinrily dctermines wbich npplicntíons ¡nerit rçview by thç fult Commisslon.
îbe mere exerçisç
of rhsl discrstion by the cb¡i¡nran not to calendar a particular appllcation
is nsilher arbitrnry nor
capriciors (see Ðeønø v,Ctty of New Yark Dept of
Buîkltngs,l77 Misçzd 6sz [st"rp Ct Ny to
19981)' Ab$nt avlde¡¡os that thc ohallcriged action r¡as taken for an
improper purposc bylhr LpC
or l¿¡ c'hairaan, the courts must defu (se e ,4,nonymous u Conmìssioner of tteølth,2
I g4 rr ADJd t ¡¡
Dcpt 2005]þjecting agenqy decjsÍon ¡o refrrçe æ sþn cor¡sent agrcctnen¡t
and direoting widenri¿ry
hcaring upoo cvidenc€ 8gptrcy ac'tion was 'for an impropar purposeJ).
There was no evidcncc of
ld xug _Licä3su-l dH ¿o ¡ I oIû¿ o¿ ¡du
37 of 48
For tha rôâsons $r"stçd above, the petition i¡ di¡misgcd ând tbo crpss motíen to dismi¡¡ tbe
pctition is denicd as moof, Accordingly, it is
ÔnD¡ntrD ø¡d ÄDJUDGSD th¡t the petition ig DI'SMISSED and it is fr¡rth€r
ORD$hED that rhê cros¡ mogon to di$nlss ttre pctition is DENIED and rsoot.
ÐATEÞ¡ Áprll 15, 20t0

ENTER: ,"1
o.
J.8.C.
S'd xuJ l3cä3su-'t dH Lt.I ftIûz 0A Jdg
38 of 48
APPENDIX 2
39 of 48
t!
ii
it
I'
il t1+sfta
'l l'trz,..
.'
r!
SUFRDI.:E COUP.T NNF YOIII( COI'NTY
i SFECIAL TLRM FÀR? T
-x
f¡r tlre luiatter of thc ¡pplicatjor¡ of ,'l
¡|ÀROLD !f . SUCKI.]I{TI{,
pcti tioner , ,"

'.'.1
For a n Orcler pursualrt to /\rticle

7g
Index No
of rh e Civil Friìcticc L¿.rr,y a¡rcl Iìulc:s, 20281/79
- Aq.ì i ¡ì:; t: -
lÐ'ili\IìD I. XOCìl, ar; llnyc.rr: of tlrc.r
CiLlz of l.tcry yor.k, lit:rç,i.-ii¡ñirr,,,
as Chairm¡n of Lhc L¿¡,r¿riii¡.i'
Preseì.'va tion Colnu¡"i. s;r; i,r,'r,
--ui
'lì¡l: iìJ
J,i\ND¡í^;tKíj I,lìl:Íll;¡{V,\,,,i Ofi"-
C0¡rllf ISSION r
llos¡:clrtcìr'rtr I:.i; .
I¡UGI{AS, J. i
Iretitioncr ili)iil ic.5 for a judcrmcnt pursuant

to epï,R
Àrticle 78 clircct i rxl r:cs¡ionrlt:n r:...; t:o
rni.¡ile ¡v¿r i lable ie"or,ts
of
the Landrnark prcs¿_,rv¿¡ t i orr Çonmil.;r;io¡r
ilert"1 ining to the [Ielen lla yer
1'heirtrer or r i¡r tlrn ;r r t.r'r:n;rt: i v<-" rr .i rct:t:
inr; Lhc L¿rnr¡m¿rr¡: prcserv â-
tion cornrni.ssitrrr " t:t) f Õr:thrri tlr lir(-r(.rt ,1 L¡(r makc a creterninatio¡r
rlorìcer¡lirrq L'c s-ir-¡r f f r{}(:()¡iinl.rìri¡ L i c¡rr r:h"rt- Lrrt: ireren Hayes Thea tre
bc. dcsignaterl .l lancl¡nnrJi. ,,
Ïnsof;¡r iri; I l:rlck:ì r.,,r.(:i.(lr; ¡ir'::.;tr,l*L t"o

i
Lhc I.rccrl'nr
r)í- .f'l¡fc¡rnr¡¡r^'i ùrr l."ltr', r rrt'
irr:r it: ir¡rr i:; trt:f .i.t:it.nt- i.¡i filiì.irrc.¡ r
Lo
.tl lct¡c tn¡t !ì *-I j.t:lr-,¡l r.crrtr(.,:.ìt
l.or .ì rr,corcl r,ia..: ¡rladr-r (Irublic
Clf f ice::s;
l,.t',r', i fJ9l.lì). l.ìvr.:r il r,r .lit-ir)rìr.,¡_r.. li,ti.r:r
d;r t.c,.l \lovc¡.:lber g,
j 97.,} a¡rcì rn¿¡ i lcd t-r: i, l¡(, C(r,lljr i :;:,; j r:ri ¡¡11-r':-- Llrr:r
i¡is; tit-ution of tiiis
40 of 48
rl
il
ì)roccêcling wert-'tr> bc: considercrl âs:;¡tj..sfyi.nr¡ the writt.err r(jrlur,,rrt

rec¡uirement, the ¡r¿'¡.ition Wc¡u1.fl nr-_,vr.rrtheless remain deficier¡t
for j.Ls fa j lurc-' to allr'r¡it-. that ;trì tr¡r,rcö L v/¿ìs tal:-on from thc
co¡nmis.sio¡¡ t:j I ol ;rr:{:css, rl;rr:.r,tr f.Jov<.rnr[lc¡: 23, 1979, to t-];
dr:rti;r
(lor¡rn¡issio¡r rs ir<:acl , cllicf cxccut:ivc or (rovernilrg body (public
Offi.cers Lå¡"/, 5 B9t4¡). :
Ir¡sr f ar ;ts il ¡'ìt:nþ..'; t'o r:onr¡re1. thc L,anrjmark preservatic¡n

j
co¡ruri.ssion rtt:Õ forLlr,¡¡i t.l¡ mcct ¡n¡-l ¡n¡iþ,c ¡ d*terminatÍ.olr,,, the

¡rct'-ition canrrot l>rl <¡r';-r¡rt:r'rl ¿ls t lrr-rc i:; nclt.lri nq in the pert jnent
:iLi¡tr¡Lq: (Àclnl i n isl:r;rt- ivr: Lirrr'¡ .clr. ¡t-Âr )s 20r-l , û et ser¡. ) which
com{)els thc Conìnì i,ç:;ir>lr to act il¡ sur.:t¡ rn¿lnnÉ}L. The CommissÍc¡n
;
i s cm¡:owêfctì, but ¡lc¡1. rer<¡ui.red ur"¡rlr;:f rìltf qi vclr r:et of circumstancds

or: .f ¡ct.sr lr) .:.¡ìr;iclr-'r ¡r ¡rirrt:i.cu lirr im¡:rovrlnrt-rrrl.: tclr landrnark i
I
clcsiqrtai: j.orr, ûnd, ¿rl: t:cr ¿r iiubl ic lrcar in<-¡, Lo mako the clesignation I
I
(Àdmi.nist,rative Law, :; 207 -2.0 f ¡ I ) . lthr: rrr;lLter beinq entirely I
I
I
within the ciiscrctir.r¡r c¡í. tlre Comniss;io¡r t ¡aandamus does not lie I
I
undcr CPLR 7rì03 tl ì) .

f
I
r-t tloc¡; r¡,L .'rv,.¡ il ¡rct:ì t 'i.onùÌ' tc, ¿r!:(tuc Lhät thc
I
I
:
(iôtnmi ssior¡ 's rcllt¡ri,r ì I o ¿ {Clc-:r.mination is i tsclf a
¡¡¡¡.,¡.¡. ¿¡r'rrl r¡r;¡k<.. I
clcLu'rmitlatiolr which, c¡ivtln t: lte ¿rrc'hi LccLuraJ $iqnif icancc of the

¡fcirlrr fl;ryt-'s 'i',ht.l¡t'l'i.' ;¡¡,¡rl il:..:i inr¡rr,rrrl i¡t..f rjt:nr<:li t jon, amounts t-o an
¿.li;t"l::c.' Of riisìcr(-\f i()!t ¡'i'r,r j1,q,.1 ltlt, 1¡¡¡111.r ('pLfì 7S{)l (l) . À r:efUSal tO
¡it."tllt: ;r tli:l(]l-llì.i ll,lt ioti ¡"¡,,,,,,t lr¡ rttrrl,..t'ril(ì(){ì ¿l:.ì it ,,t.lt.)tt-..,.mi..¿t j.'r¡,,
r.'j t.h jrr Llrt: ¡rrr'j;ulin¡l r.rl t:f,l.,ll lg{) I t ,) r.;l¡t:¡¡ t. ltr:l-r: is
lic¡ oblig;rtion
l.¡¡ nr¿rke a clct: c'rrnirr.'rr i<,rr jrr Illr: I ir:.:l ì/liì(-,c. f cetl', i.¡; canr¡et ¡r<.1
cv¡:rt lic s¡rici tL i-ll i''; f imr: t:lì.1 l" l lrr, ('r,¡nr¡il;:;.i orr l¡.:rs decirlecl .not to
-2-
::!;
''
f¿
'-u':: '
¿¿qþ,*¡tl,æ¿..
41 of 48
\.1, '"' i...¡¡.-\'¡. Ú,

:f
cìtrcidrr. l
t ciur lrt. :;¿r i rì i :;
Àt t hir
t lr.r I nr) rlr,t. ii; ìl.r¡l á¡¡ L¡¿ l.l)c
Lanclmark worthir)$:ìs crf lht_.
Ilclc,lr I l.lt v c'¡: 'l'lìt.it I t'(. ltit !, l¡¡..1.¡.¡ trtri,Jr,
,
¡l¡cl t*l'r¡:thCr ¡_l¡ttl ciì¡¡ btr c:r)¡11.,(r.l
lt,(l i:, .t rittcl;t iolr I h;¡t. r:rut lrrr
.¡n.ì l!':¿ed onl!, undcr
illll.lì lr;()-] ( I ) .
The Court- I¡as nr)l_(,(t t:l¡t, ¡t t-rlulltunl
li f ir.l, ¡" t¡t¿¡clc i.n i
' petitictner's n¡c'lnorfl¡lclrt¡¡ crf L,¡i*'r åìfr¡r,¡r't.¡rt.J¡, ¡rrt.¡,,.1 rL.(r Jr¡ rr.rir.r()¡li,:r,
Lo resl'rçncTc¡ttS' ¡r r):rrrt'r' ¿r¡¡ci
t i¡.¡il l.r¡ Lrrt, ¡rt,r i t i.rln, ;.rrrdr{.:ri.¡-
(ì1.)r)ori i
'i'r¡ it:su']f rtr iss(ri'r; lrr¡t' r'a-i¡¡cd
irr r.r*: ¡;r,( ir. i'rr íl¡ ,¡ ma¡rrr_,
rlr.. f6ur-t crc'c:us l;rtf f ic it,¡rt ,r-r,,r,:
t..' (r¡vr. lrrrI i,,., rrr*r"r,¡rf rr,i
tlle¡t¡illct of cpLR lr).l3
ill i¡t r rrr,, ,, ,
' 'r'lìil tì.t' i('r' r¡r' ¡rr.r'í r i'¡¡ .¡r:tl:; ry

tÌuilnìi¡';sirrn 'rr tr¡,¡t r-r¡t¡ l
r)ô
¡.,.¡ | ¡r p¡1r,.r ,r¡r,l l:i.rr,,, ,¡ rrt.rr..r"rnitt"lt
ç6¡¡¡r,¿.r
ir¡¡ r. I'itritr¡r;t¡ùt
20 of thc petjtjcur, i¡l)l¡iu.t,lìt.
11, Ilrc ,rl lctt,¡t,iorr ç¡
wþi.ch pctllèioncr:
re l' jes ås cll')Crùt ittr¡ ¡
t:rl ir'¡rririìnL Lrrc r.r,l. it.!- ..;<ln<rht r,
ir¡ thc ilotice t
'rcr<rs ¡¡othinq of substa'i:r¡ in inrrf !
).irlrf Llr,rr Ìhc,(,r¡¡nrnission has
rorro¡¿etì its q>w¡r "ì.rwfrrl not i
¡r¡-11¡..1..¡¡¡r-(ìÍ;,,.ìr¡rr irr ar;k.i
commi'ssion bc c.,m¡)cIlc(r ,,t:. ^g,rat trìc i
t
¡r¡1-¡¡;¡..¡.1¡ irr iì(:(:()r(r¡r¡r¿;c_,

i.i ¡¡'¡11¡1 thc basjr; .,f' tris; .tJ wiLh law.,, rt i
lcc¡.r1.i.. ,r^ri .Llrrlrs; rr*¿¡ring
uiro¡r the architcct-ur.lr ;;;rrj; i
s iq¡ri.f ica¡¡cc of
the rleren ¿¡qI ,ayess5 ,n..ar"-'
'''f
j
ËnaL petitionerrts asksr ^ t- -
thr) Court to cons;irl¿:r- an i
i art¡unrcnt jn hj-
niemorandum to,ra effcct trrat:, i.¡l s<:lc-,r:t:irrrr ¡>;rrricular impr<rvo*onL:s
f.r co'sjcrcr¿rti<.:tr arj] r),r;:iirrl(., l..lrti¡rr.rr:.k dc-,r;ir¡rrirr_!."s
from anong
htltlc.l rccìs of sui,lresti.tt.r¡ ¡r¡lc¡ r:('(¡rcsr-:,; J,rìct.r
i.v.iì c,vr:ry yc.rr, the :
r.;t..ttlid¡rr.ls are in f ¡r:l: rtainable j

r¡:;r:tl .i rr rn;th irrr¡ :,rrr(:ll l;tll
ccLi.r>rt.t, the exercise i
rif f i)r' ('r:mmi¡;l¡itil,',,, ,.r i:;,'r,.f. if
rl j¡¡ t riir, r,,,.¡,rr<ì r,,r.¡L¡ l<¡ .i¡.lvitc ,ll-:r.¡sc I
42 of 48
¡l oncl poj nt in l¡ i.s rn(\!n()r;ìndum,

i'¡rtiLle<r ro \¡¡¡¡¡, r',r¡.t.rr*r
";;;;;j
!rctitioner
it: i ¡;'
*rn,,¿.,,¡, oÏ,
i.s actirrr¡ i¡r ¡¡r ar-liitr.:ry "it]:'"p'bl
t'¡heL'cr fthc Chairn¡¡lrl
fashio¡r.
and ca¡:rici.us
',
Às not.c.:d .:¡bc¡ve, thc pclitio¡r

' determrnation of is too vague to permit a
issues discr¡ssed the nrcrnorancrun but not :
il¡ the Þetition. upon the 'n framed-

bnsis <¡f tht_,;r¡_¡¡ition
subrnitt'ecr in' its su¡r¡rort, ancl the papers
it c¡nnet trr: *r:tcr:li¡red
is aski¡¡ç thc Corlr.t t. ççr¡¡¡.r¿l ro,hether ¡:ctitioner
tl¡t^,(.c:rinri..;si.¡: to ¡rublish its rules
iJr r. ¡"r¡6¡qrq;lir: r'.rr)s
i.t Ììo¡lð c:ii.r:tr;
th'j court f i¡rcr tr¡at rr¡ Ics 'r rchether he see!:s ;"";";"
i¡i ftrr'<:t--' Jr.'rr bei ni: r;..priccr
r'¡ncoirstituti*lr¡ l nt¡t¡llt':r, in an
or to hr:rri t iì;ìt tr.:a rar.rci¡narl:
t¡l:côrrstitutiona.l es ¡ l.:q¡.,ll.rt jr... lar., js itse rf
(,:"r,ti:tr:Õt:I,.
Àccor¡ì.i"lr.¡ l-t , th¡.1 .r¡.:¡r I lc.t I ir::r ls {lcn ied and the petition
tìi smisse.J.
ÍitlttIç' jutì,fni,.lrt .
D.ttcd: Jethrlíìr.\, j l,ì:ì(').
J.
J^'
,'idi4,tÞ""*,
43 of 48
APPENDIX 3
44 of 48
rlL14 LÊL] F ax:212-79t-9714 Êug 27 '98 i5:29 F. rl3
ST}PREME COURT OF THË STATE OF NEIV YORK

COTINTY OF NEW YORK : IÄS PART 62
X
ln the Maner of the Äpplicetion of
SÁYE THE ÇOTTAGES AI.ID GARDEN,
Petitioner,
For a ludgment Under ¿å'.flicte 78 of the CPLR

Indcr(No,
against - 1t4543t98
CITY Of ¡rEW YORK; JENNIFERRÁ,.åB, æ Chair

of the New York Cþ Iandmarks P¡escrvation
Commission; the NEIV yORK CIIYLAIIDMARKS
PRESERVATION COMMIS SION; ar¡d DBBORAH
foAN GERIW& MEREDITÍI I(AltE,
CHRISTOPIIER MOORE, PJCHARD OLCOTT,
SIIERTDA PAITLSEN, 1ãOI4AS PIKE, IA}T HIRD
VICKI I,ÍAïCH SIIN,{' PÁBLO
\IENOCOECIIE4T æ Commi¡sioners of tås New York
City Landmarks P¡esen¡ation Commís$io& and
RFD THIRD Ä\¿ENTJE I ASSOCTATES LLC,
Respondcnts.
x
Weissberg, J. a
This is an articlc 78 prooccding secking an ordcr in tho nah¡¡c of mandamus

!'
directing the New York City La¡dmarks Preservation Commission (.LPc") to calendar for
-¡ .'
.i¿
land¡nark consideration a two-*ory building aird gardcn aree located at 180 Ea# Zgô Sireet
"i
in Manhattan k¡own as the Cottages and Gardcn ('C&G'). Tho respondent RFD ThÌrd
Avenus I Associatcs k the curreat ownei of the.property. RfD has obtaincd a permit ñom
¡he New York CityDcpartment ofBuildings \rhich âuthonzes it to construcr a 3l-srory
coniiominiurn building ori the C&Gsite.It intends to cornmerice demolition of ihe Cottages
45 of 48
*D¡4. LRLi Fa'x:272-791-971¿ Auc 27
buil.ding on or about Sdptember 1, 1998. In additioa to a¡ o¡der of rnandamus, tbc
pctitioncr also sccla an order enjoining RED from procetding with its demolition plans.
The defendants havc øoss-moved to disnriss 'Jre proceeding on tle ground, ínter alia, úv¡t'
¡n arder in the naturç of mq¡rdamus does not lie with respect ¡o the reücf sought by the
petitioner and that the application is rnool
Beckground
Under the l¿ndmarks Preservatios & Ã[storic Districts lau (N.Y. C. Admi¡. Codo
5 25-303), thc LPC is authorizcd to designate buildir¡g¡, sitcs a¡d djstricls for landmark
starus after r public beering. There is, howwer, no'provision in the Administr¿tive Code
whioh requirÊs tho LPC to consider û requcst for landmark status that is submitted to it.
Indeed, under the LPC rules which were adopted pursuarú to ættion 25.3lgof the
I:w;thc eommission has unlirnited disc¡etion to decide'whether to calendar
for a public hæring an applieation for landrnark dæignation ,See &tles of the City of New
York, tit. 63, ç l-02.
On four prior occrsions, once druíng the Koch administrstioq trvic€ during the
Dinkins administration and most rccently, during the Giuliani administration in lvlay, 199?,
an applioation fsr fandmarks consideration foi'i the C&G was made lo the LPC.õn each of
these osg&sions, the LPC refi¡sed to calendar the application. In Deccfi¡bcr, 1997, a fifth
:
reque5t for landmark consideration ofthe C&G was subrrutted to the LPC. The apptication
wæ submined by tho pctiúoner. By løttcr dated May 11, 1998, the LPC denied tlre request,
stating tfiat the documentrtionsubmitted by the petitioner Cid not provide ¿ basis for the
Commission to reconsider or revcrse its prior detcrmination not to hold a public hearing on
-2-
46 of 48
ÊDl"i. L.í{fl F ax:21,2-?9t-97 14
-¡qg,-a!^
'98 15:?9 P.05
the C&G.
Diecu,¡¡ion
In this proceedìng, ttre petitioner challcngcs thcLPC's refusal in May, 199E to
catendar its rcqucst that C&G be considered for landr¡ark dæþatìon It is well settled that
'the remedy ofma¡damus is avail¡bleto conpel agovcmmental entity or oficer to'
perform a mi¡istcrial duty, but docs not lio to comgel a¡i ¡ct which i¡volvcs an orercise of
ot discretion." Malls of Brscav. Braun,84 Nyzd 614,679 (1994). See also
of Morrisonv- New York Sate Div. of Hwsing ød Cowmníty.Renewal,Zll
AD2d 34,19 (i" Dept. 1998) (mandamus does not lie to compcl St¿te Fke Prev¿¡rtion and
Building Code Cormcilto convene); Sasløa v. CE*øs,tg8 .AD2d 53 (1" Dept. 1993)
(denial ofrequest for m¿ndarrn¡s order direcdngBækingBoardfo tneêt in order to
prescribe intcrcst rateg on rnortgage cscrow accounts). I

i
Hor, th1
l"t"ttoio?to.n $''"hah* tg "4*
withinthc unfetter€d discrstion of.tbc LPC. fu suclr, the remedy ofmandamrc ìs not
avail¿blo to compcl the Commission to scbedulo a public hcaring on the petitioner's requesr
that the C&G rercive landmark desþatioa- ,
In any u:*, the potirioneris rcquest fgr injunctive relief a¡d mandamuíis rnoot.
t¡
Under the *{dministr¿tivs Code, the Landmarks Lar¡' is 'inapplicablc to the constructiôn,
reconstn¡ction, aìteration or dcmoli¡ion of anyimprove¡ngnt on a l¿ndmark site...wherethe
pennit forthc performance of such work wæ issued by the deparlmeat of buildings...prior
ro ¡hè effective date of the fiandmark] desþation pursuant to thc provisions of section 25-
iA3." See Admín. Cde of rhe City of New York $ 25-32l.Here,RFD h¡s already obtained
-3-
47 of 48
fìDI',i. LÊLJ F a;< :2 12-791,-971.¿ Êug ?7 ''i8 15:10 P. 06
thé req!¡isite pcrnit. Thus, even if ¡he court were to compel råe LPC to calendar a public
hearing for consideretion of the C&G as a landmark and wcn if the LPC were then to
:
dptermi¡re tlrat the C&G should reccive landma¡k designation, such designation could not
prevent RlD fom denrolishìng and altering the C&G pursuant to the permit which it h¡s
already obt¡ined.
Accordrngly, the rcspondents' ôross-rnotions to dismiss are grented and petition is
h.rehu rliqmi.merl in ite ¿ntir¿tv

4a---)
The foregoing co¡stihrtos the decision and judgment of the court.
Dated: New Yorlç New York

Auet¡st ?6, 1998
R- \ryEISSBËRG
I
i:
48 of 48

NYC's Landmarks Preservation Commission's Legal Document Responding To Tribeca Trust Lawsuit

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NYC's Landmarks Preservation Commission's Legal Document Responding To Tribeca Trust Lawsuit

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FILED: NEW YORK COUNTY CLERK 07/28/2017 05:20 PM INDEX NO.

SUPREME COURT OF THE STATE OF NEV/ YORK

In the matter of the Application of

CITY OF NEW YORK, THE NEW YORK CITY

RESPONDENTS' MEMORANDUM OF LAW

ZACHARY \ry. CARTER

SUPREME COURT OF THE STATE OF NEW YORK

In the Matter of the Application of

Petitioners, Index No. 158483 12016

For Judgment Pursuant to Articles 63

CITY OF NEW YORK, THE NEV/ YORK CITY

MEMORANDUM OF LAW IN OPPOSITION TO THE PETITION

memorandum of law in opposition to the amended verified petition ("petition").

("Ellsworth"), submitted requests for evaluation ("RFE") to the Commission proposing

copy of which is included in the Administrative Record at page 594.1

In this Article 78 proceeding,2 petitioners' challenge LPC's decision declining to

to Extend (on remand)." Petition, fl6 and Wherefore clause, respectively.

As an initial matter, petitioners do not have standing to challenge the

architecture is not sufficient to bestow standing on petitioners.

Moreover, petitioners are essentially seeking to compel the Commission to

legal basis to grant mandamus relief here.

Further, to the extent the petition can be construed as challenging the

deferred to the expertise of the agency.

and the proceeding dismissed in its entirety

RELEVANT STATUTORY PRO I ONS AND I,PC PROCEDIIRES

The Court is respectfully referred to the accompanying Verified Answer at flfl 84

procedures. A summary is presented herein.

The Landmarks Law

The purpose of the Landmarks Preservation Commission is to protect, enhance,

which is referred to as the "Landmarks Law."

affd,51 NY2d 449 (1980),

regulation of landmarks, porlions of landmarks, landmark sites, interior landmarks, scenic

landmarks and historic districts." Id.

An "historic district" is defined in Landmarks Law S 25-302(h) as "Any area

which:(l) contains improvements which:(a) have a special character or special historical or

pursuant to the provisions of this chapter.

The Landmark Designation Process

The Landmarks Law provides no requirements or criteria for how the

The Reouest for Evaluation l..RIlFttl Process

designation. Carroll Aff., TI 9,25.

The Commission's website, http://wwwl .n)'c.gov/site/lpc/designations/suggest-a-

The LPC Research Department, which is made up of 11 professional staff and

to consideration by the Commission. The Commission is selective regarding what to make a

25; Presa Aff., Tf 16-20.

particular time. Carroll Aff., fl 21.

calendar any building, interior, or district for formal consideration.

directly contribute to the district. Presa Aff., 1ì'll 8, 9.

Tribeca South Extension was designated. Presa Aff., T 10-12,13.

In addition to designating the four districts, the Commission has designated 31

landmarks located within one of the districts. Car:roll Aff., ,11

On or about July 31,2013, Ellsworth, as representative for Tribeca Trust,

Thereafter, in 2014 and 2015, petitioners re-submitted RFEs to extend the

boundaries of TribecaNorth, R. 199-372,East freferred to as the "4 Clusters" by petitioners], R.

By letter, dated June 7, 2016, R. 594, LPC advised petitioners of the

determination. The letter reads in relevant parl, as follows:

We recognize that your organiza|ion has made significant effort in

It is important to note that already over 64Yo of lots in Tribeca are

The Commission staff surveys thousands of properlies each year

Thereafter, on or about October 7,2016, petitioners commenced this proceeding

PETITIONERS DO NOT HAVB STANDING

appreciation of their historic, cultural and architectural values." Petition, TT 11-13.

Petitioners "demand[] . . . that the LPC actually establish a procedure . . . and

"Whether u pb.son seeking relief is a proper party to request an adjudication