1025 Fifth Ave., Inc. v. Marymount School of New York

• Decision Date: 20 December 1983
• Citation: 475 N.Y.S.2d 182,123 Misc.2d 756
• Parties: , 17 Ed. Law Rep. 182 1025 FIFTH AVENUE, INC. and 1020 Fifth Avenue Corporation, Petitioners, v. MARYMOUNT SCHOOL OF NEW YORK and Landmarks Preservation Commission of the City of New York, Respondents.
• Court: New York Supreme Court

Page 182

475 N.Y.S.2d 182

123 Misc.2d 756, 17 Ed. Law Rep. 182

1025 FIFTH AVENUE, INC. and 1020 Fifth Avenue Corporation, Petitioners, v. MARYMOUNT SCHOOL OF NEW YORK and Landmarks Preservation Commission of the City of New York, Respondents.

Supreme Court, Special Term New York County, Part I.

Dec. 20, 1983.

Rosenman, Colin, Freund & Cohen, New York City, for petitioners.

Beth Schwartz, Asst. Corp. Counsel, New York City, for respondent Landmarks Commission.

William Barrett, of Webster & Sheffield, New York City, for Marymount School of New York.

EDWARD J. GREENFIELD, Justice:

Motions numbered 204, 205 and 206 on the Special Term, Part I Calendar of November 10, 1983 are consolidated for disposition.

This Article 78 proceeding to vacate an order and decision of the New York City Landmarks Preservation Commission which permitted the respondent Marymount School ("Marymount") to construct a rooftop gymnasium on its Fifth Avenue buildings presents the court with three paradoxes:

Can a "Certificate of Appropriateness" be issued when a proposed building alteration is found to be architecturally inappropriate?

Can an exception be made for "insufficient return" in favor of a now commercial, non-profit institution?

Can the Landmarks Preservation Commission permit alterations of a non-landmark in an historic district when the governing statute authorizes permits only for demolition on such sites and authorizes permits for alterations only in landmark buildings?

The petitioners are two cooperative corporations which own apartment houses adjacent to Marymount. Petitioners' buildings and Marymount's townhouses occupy the entire blockfront on Fifth Avenue between East 83rd and East 84th Streets facing the Metropolitan Museum of Art.

The buildings lie within the Metropolitan Museum Historic District, which was established pursuant to the authority of Chapter 8-A of the Administrative Code of the City of New York (NYC Admin.Code"). The Commission has aesthetic jurisdiction over the buildings within this historic district.

Marymount is a Catholic college preparatory school with a predominately female enrollment. The three townhouses which it occupies are architecturally distinguished buildings in the Beaux Arts style, but are not in and of themselves designated landmarks. These buildings were acquired over a span of years by the Order of the Sacred Heart of Mary, which donated them to Marymount for the operation of its school. The Order retained a reversionary interest in the land and buildings in the event that Marymount ceased operation of the school on the site.

Marymount, according to its literature, prides itself on educating and challenging the whole child, intellectually, morally and physically. To the latter end, it has leased recreational and gymnastic facilities from other Catholic schools in the area when such facilities were available and has utilized other neighboring facilities on an ad hoc basis.

Marymount has no on-site gymnasium of its own. However, after two studies by educational evaluators and some parental complaints about the school's physical education programs, Marymount determined that it needed its own facility where instruction could be given without worrying about the vagaries of the institutions from whom it borrowed space.

It had plans drawn up for a rooftop gymnasium and then applied to the Commission for a Certificate of Appropriateness so that it could lawfully begin construction (NYC Admin.Code § 207-7.0). This was denied because the Commission found that the plans submitted clashed with and detracted from the facades of the three buildings.

Marymount then attempted to obtain a Certificate of Appropriateness on the Ground of Insufficient Return. (NYC Admin.Code § 207-8.0).

"Insufficient return" is almost by definition a commercial concept, and inapplicable to non-profit institutions such as Marymount (compare NYC Admin.Code § 207-1.0[v] ). The analogous applicable standard is that landmark-related restrictions "not physically or financially prevent, or seriously interfere with the carrying out of the charitable purpose." (Ethical Culture v. Spatt, 51 N.Y.2d 449, 455, 434 N.Y.S.2d 932, 415 N.E.2d 922 [1980] ).

Marymount submitted a revised design which it alleges is virtually invisible from the street, except for a 15 inch span. Hearings were held on the application, and testimony taken. Staff members of the Commission were directed to study the existing Marymount structures and to determine whether the facility could be housed inside the buildings.

The Commission rendered its "Determination of Application for a Certificate of Appropriateness to alter designated buildings inappropriately on grounds of insufficient return" on July 20, 1982. This determination recorded the voluminous documentary evidence and listed persons testifying for and against the proposed addition. It then held that the proposed addition was still architecturally inappropriate, apparently without considering modifications to the original plan.

The Commission then applied the test cited above to the problem before it. It set forth in considerable detail the evidence introduced by Marymount in support of its contention that lack of the gymnasium "seriously interfered(d) with the carrying out of the charitable purpose." This included, in addition to other factors mentioned, the growing emphasis on physical education in women's education and the decreasing availability of other facilities to the school. It found other, alternative plans for constructing the facility were not feasible. In conclusion, the determination stated:

"Having found that the Applicant had established:

(1) that the improvement had ceased to be adequate, suitable, or appropriate for carrying out the purposes to which it is now, and, since acquisition, has been devoted and

(2) that it has the necessary intent to proceed promptly with constructing the inappropriate addition,

the Commission determined that a showing of insufficient return had been established by the Applicant."

The Notice to Proceed dated February 2, 1983, based upon this determination is the subject of this proceeding. Neighboring property owners, petitioners in particular, have charged that construction of the rooftop gymnasium, even as modified, would obstruct views from their apartments and lessen property values, as well as detract from the fashionable ambiance of the neighborhood.

Petitioners challenge the Commission's actions on the grounds:

(a) That the agency was without jurisdiction to issue the Notice to Proceed, because the relevant statute gives it authority to rule on demolition of buildings in historic districts, but not on alterations to them;

(b) That assuming for arguments sake that the Commission was within its power to consider the issue, the Notice to Proceed was improperly issued because the proposed modification was not necessitated by an interference with the school's present use of its property.

(c) The facts in this case plainly do not support the Commission's action; i.e., the school had demonstrated mere inconvenience, and not that its corporate purpose was being frustrated by the lack of a gymnasium.

Marymount had interposed an answer which asserts cross-claims against the co-respondent Commission in the event that the Petition is granted. These include an assertion that the statute is confiscatory and therefore unconstitutional, and that the Commission erred in not considering the appropriateness of the new design.

There are procedural and ripeness deficiencies inherent in the assertion of these crossclaims. At the present time, it is sufficient to note that both the Commission and the petitioners have moved to dismiss them.

Marymount appears to have fallen into one of the many interstices in the Landmark Law. The courts have been attempting to assist the Commission in resolving problems not covered by this legislation for years. (See e.g., Lutheran Church v. City of New York, 35 N.Y.2d 121, 359 N.Y.S.2d 7, 316 N.E.2d 305 [1974] ).

The particular "oversight" upon which the petitioners rely occurs in the following portion of the statute:

207-8.0a. (1) Except as otherwise provided in paragraph two of this subdivision a, in any case where an application for a permit to demolish any improvement located on a landmark site or in an historic district * * * is filed with the Commission, together with a request for a certificate of appropriateness authorizing such...