Allison v. N.Y.C. Landmarks Pres. Comm'n

• Citation: 2011 N.Y. Slip Op. 21478,35 Misc.3d 500,944 N.Y.S.2d 408
• Parties: In the Matter of the Application of Eric W. ALLISON, Kevin J. Farrelly, Ted Nardin, Theodore Grunewald, and Citizens Emergency Committee to Preserve Preservation, Plaintiffs–Petitioners, v. NEW YORK CITY LANDMARKS PRESERVATION COMMISSION, Vornado Realty Trust, 510 Fifth Avenue LLC, 510 Fifth Eat LLC, Vornado Realty, LP, and VNO 510 Fifth LLC, Defendants–Respondents.
• Decision Date: 18 August 2011
• Court: United States State Supreme Court (New York)

35 Misc.3d 500

944 N.Y.S.2d 408

2011 N.Y. Slip Op. 21478

In the Matter of the Application of Eric W. ALLISON, Kevin J. Farrelly, Ted Nardin, Theodore Grunewald, and Citizens Emergency Committee to Preserve Preservation, Plaintiffs–Petitioners,

v.NEW YORK CITY LANDMARKS PRESERVATION COMMISSION, Vornado Realty Trust, 510 Fifth Avenue LLC, 510 Fifth Eat LLC, Vornado Realty, LP, and VNO 510 Fifth LLC, Defendants–Respondents.

Supreme Court, New York County, New York.

Aug. 18, 2011.

Albert K. Butzel Esq. and Michael S. Gruen Esq., New York, NY, for Petitioners.

Amy Weinblatt, Assistant Corporation Counsel, New York, for Respondent New York City Landmarks Preservation Commission.

Maria T. Vullo Esq. and Aliza J. Balog Esq., Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, for Respondents Vornado Realty Trust, 510 Fifth Avenue LLC, 510 Fifth EAT LLC, Vornado Realty, LP, and VNO 510 Fifth LLC.

LUCY BILLINGS, J.

This proceeding requires the court to determine what interests and injuries New York City's Landmarks and Historic Districts Preservation Law protects, so as to confer standing for persons without a property or contractual interest in the landmark, which would confer standing absent the statutory protection. This determination in turn requires the court to ascertain whether, under the landmark preservation statutes, it may recognize the types of interests and injuries the Court of Appeals has recognized as conferring standing under environmental preservation statutes. This court concludes that the controlling authority dictates recognition of similar interests and injuries, that otherwise the landmarks preservation statutes would provide no more rights than property or contractual interests would provide, and that one individual petitioner and the organizational petitioner of which he is a member show that they meet the requisite standards.

Petitioners seek to enjoin respondents Vornado Realty Trust, 510 Fifth Avenue LLC, 510 Fifth EAT LLC, Vornado Realty, LP, and VNO 510 Fifth LLC (Vornado respondents) from their partial demolition and remodeling of the Manufacturers Trust Company (MTC) Building, referred to as the iconic “glass house,” at 5th Avenue and 43rd Street in New York County. The building's exterior was designated a landmark in 1997. Among its unique attributes are its transparency and seamless transition between its exterior and interior, providing a full view of its interior from the exterior, yet the interior was designated a landmark only recently, in February 2011. Only three months later, May 19, 2011, respondent New York City Landmarks Preservation Commission (LPC) issued a Certificate of Appropriateness under the Landmarks and Historic Districts Preservation Law (LPL),

N.Y.C. Admin. Code § 25–305, permitting alterations of the interior features, as well as less extensive alterations of the exterior features, that give the building its landmark status. Petitioners also seek to reverse or annul LPC's issuance of that Certificate of Appropriateness. C.P.L.R. § 7803.

Insofar as the court does not grant the petition immediately, petitioners move for a preliminary injunction prohibiting the Vornado respondents from their partial demolition and remodeling of the MTC Building pending a final determination of the petition. C.P.L.R. §§ 6301, 6311 (1). The Vornado respondents move to dismiss the petition based on petitioners' lack of standing, laches, and failure to state a claim. C.P.L.R. §§ 3211(a)(5) and (7), 7804(f). See C.P.L.R. § 3211(a) (3). LPC cross-moves to dismiss the petition based on petitioners' lack of standing. C.P.L.R. §§ 3211(a)(7), 7804(f). See C.P.L.R. § 3211 (a)(3).

I. STANDING TO MAINTAIN THIS PROCEEDINGA. Petitioner Allison

In determining motions to dismiss based on lack of standing, the court accepts the allegations of the verified petition and petitioners' affidavits as true. Rhodes v. Herz, 84 A.D.3d 1, 3 n. 1, 920 N.Y.S.2d 11 (1st Dep't 2011); Trustees of the Plumbers Local Union No. 1 Additional Sec. Benefit Fund v. City of New York, 73 A.D.3d 530, 531, 900 N.Y.S.2d 312 (1st Dep't 2010); Hammer v. American Kennel Club, 304 A.D.2d 74, 78, 758 N.Y.S.2d 276 (1st Dep't 2003); Shui Kam Chan v. Louis, 303 A.D.2d 151, 152, 756 N.Y.S.2d 534 (1st Dep't 2003). On these bases, among the individual petitioners, Professor Eric Allison alone shows his standing to maintain the petition's claims, because Allison has taken distinct advantage of the landmarked site, differently from the public at large. Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 305–306, 890 N.Y.S.2d 405, 918 N.E.2d 917 (2009); Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 774, 570 N.Y.S.2d 778, 573 N.E.2d 1034 (1991); Citizens Emergency Comm. to Preserve Preserv. v. Tierney, 70 A.D.3d 576, 896 N.Y.S.2d 41 (1st Dep't 2010). He regularly visits and leads walking tours to the MTC Building to teach his architectural students about the unique qualities of the building as an American masterpiece of mid–20th century modernism exemplifying the International Style. He emphasizes the transparency and integration of the exterior and interior through their uninterrupted plate glass expanses and coordinated design. Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d at 305, 890 N.Y.S.2d 405, 918 N.E.2d 917.

Because the MTC Building's interior is fully visible from the exterior, rendering the exterior indistinguishable from the interior, a significant feature supporting the landmark status of each, the interior as well as the exterior is an urban environmental resource viewed primarily from the outside. Thus Allison's tours to the building, even if to view it only from the exterior, encompass use, study, and enjoyment of the interior as well.

Petitioner need not reside or work near the landmarked site to maintain standing. Id.;Brunswick Smart Growth, Inc. v. Town of Brunswick, 73 A.D.3d 1267, 1268, 901 N.Y.S.2d 387 (3d Dep't 2010). The observable, palpable modifications respondents have proposed and permitted will directly curtail Professor Allison's professional use and enjoyment of the unique site integral to his teaching and course of study: his profession. Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d at 305, 890 N.Y.S.2d 405, 918 N.E.2d 917;Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d at 775, 570 N.Y.S.2d 778, 573 N.E.2d 1034;Citizens Emergency Comm. to Preserve Preserv. v. Tierney, 70 A.D.3d 576, 896 N.Y.S.2d 41.

B. The Standards Supporting Allison's Standing

Although Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 890 N.Y.S.2d 405, 918 N.E.2d 917, addresses protection of a natural rather than an architectural resource under the State Environmental Quality Review Act (SEQRA), N.Y. Envtl. Conserv. Law (ECL) §§ 8–0101 to 8–0113, landmark preservation could not be more closely analogous to SEQRA. Both the LPL and SEQRA address preservation of the environment; the LPL preserves the urban environment; and SEQRA specifically includes “objects,” ECL § 8–0105(6), and “resources of historic or aesthetic significance” in the definition of the environment to be preserved. 6 N.Y.C.R.R. § 617.2( l). While common, undefined interests in the environment may not confer standing to challenge an environmental injury, injury to a particular petitioner's aesthetic and environmental well-being, activities, or pasttimes and his “desire to use or observe, even for purely aesthetic purposes, is undeniably a cognizable interest” for purposes of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). See Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d at 305, 890 N.Y.S.2d 405, 918 N.E.2d 917;Save Our Main St. Bldgs. v. Greene County Legislature, 293 A.D.2d 907, 909, 740 N.Y.S.2d 715 (3d Dep't 2002).

Since Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 890 N.Y.S.2d 405, 918 N.E.2d 917, its standards have been employed to assess standing specifically under the LPL:

In environmental or preservation matters, standing may be established by proof that agency action will directly harm the petitioner's members in their use or enjoyment of the natural resources or area in question.

Citizens Emergency Comm. to Preserve Preserv. v. Tierney, 70 A.D.3d 576, 896 N.Y.S.2d 41 (emphases added). Although Heritage Coalition v. City of Ithaca Planning & Dev. Bd., 228 A.D.2d 862, 864, 644 N.Y.S.2d 374 (3d Dep't 1996), well over a decade before Save the Pine Bush, held that educational use of a landmarked site did not confer standing, Save the Pine Bush's standards now apply to standing under the LPL. Citizens Emergency Comm. to Preserve Preserv. v. Tierney, 70 A.D.3d 576, 896 N.Y.S.2d 41.

The First Department's application of Save the Pine Bush does cite Heritage Coalition v. City of Ithaca Planning & Dev. Bd., 228 A.D.2d at 864, 644 N.Y.S.2d 374, but only for the point that a petitioner needs more than a mere appreciation of and interest in preserving the protected historic or landmarked site to establish standing. Petitioner organization in Citizens Emergency Comm. to Preserve Preserv. v. Tierney, 70 A.D.3d at 576–77, 896 N.Y.S.2d 41, failed to meet the requisite standard by showing that LPC's action would directly affect the organization's members “differently from any other members of the public” in their use or enjoyment of property being considered for landmark designation, id. at 577, 896 N.Y.S.2d 41, the same standard the Third Department now applies for standing to challenge land use. Brunswick Smart Growth, Inc. v. Town of Brunswick, 73 A.D.3d at 1268, 901 N.Y.S.2d 387;Save Our Main St. Bldgs. v. Greene County...