Church of St. Paul and St. Andrew v. Barwick

• Decision Date: 05 June 1986
• Citation: 496 N.E.2d 183,67 N.Y.2d 510,505 N.Y.S.2d 24
• Parties: , 496 N.E.2d 183 CHURCH OF ST. PAUL AND ST. ANDREW, Appellant, v. Kent L. BARWICK et al., Constituting the Landmarks Preservation Commission of the City of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 24

505 N.Y.S.2d 24

67 N.Y.2d 510, 496 N.E.2d 183

CHURCH OF ST. PAUL AND ST. ANDREW, Appellant, v. Kent L. BARWICK et al., Constituting the Landmarks

Preservation Commission of the City of New York,

et al., Respondents.

Court of Appeals of New York.

June 5, 1986.

Frank Patton, Jr., and William Leibovitz, New York City, for appellant.

Frederick A.O. Schwarz, Jr., Corporation Counsel (Edward F.X. Hart and Larry A. Sonnenshein, New York City, of counsel), for respondents.

OPINION OF THE COURT

HANCOCK, Judge.

In this appeal in a declaratory judgment action we address a preliminary legal question: whether the claim that the Landmarks Law ¹ is unconstitutional as applied to plaintiff, the Church of St. Paul and St. Andrew, is ripe for judicial determination. Plaintiff's church, the attached parish house and its separate parsonage are located at West End Avenue and 86th Street in Manhattan. Because of the long-continued disrepair of the church, the expense of maintaining and heating it, and its meager financial resources, plaintiff had developed a rebuilding program which included plans for the complete renovati of the church and the construction of a commercial high-rise condominium on part of the property. Its claim stems from the designation on November 24, 1981 of its church and parish house as a landmark by the New York City Landmarks Preservation Commission.

Plaintiff does not question the facial validity of the statute. (The Landmarks Law has withstood constitutional challenge; see, Penn Cent. Transp. Co. v. City of New York, 42 N.Y.2d 324, 330, 397 N.Y.S.2d 914, 366 N.E.2d 1271, affd. 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631.) Rather, it contends that the Landmarks Law, as applied to it by virtue of the Commission's designation, effects a "taking" of property without due process or just compensation and interferes with the free exercise of its religion in contravention of various provisions of the Federal and New York State Constitutions (see, US Const 1st, 5th and 14th Amends; NY Const, art I, §§ 3, 7). Plaintiff's complaint contains the allegations which this court has recognized as necessary for a charitable organization claiming an unconstitutional application of the Landmarks Law--i.e., that the statute, as applied, physically or financially prevents or seriously interferes with the carrying out of the charitable purpose (see, Matter of Society for Ethical Culture v. Spatt, 51 N.Y.2d 449, 454-455, 434 N.Y.S.2d 932, 415 N.E.2d 922; Lutheran Church v. City of New York, 35 N.Y.2d 121, 131, 359 N.Y.S.2d 7, 316 N.E.2d 305; Matter of Trustees of Sailors' Snug Harbor v. Platt, 29 A.D.2d 376, 378, 288 N.Y.S.2d 314).

On defendants' motion for summary judgment, Supreme Court dismissed the declaratory judgment action as not ripe, without prejudice to appropriate proceedings after completion of the Landmarks Law's administrative processes. The Appellate Division affirmed unanimously, without opinion (110 A.D.2d 1095, 488 N.Y.S.2d 943), and we granted leave to appeal (65 N.Y.2d 606, 493 N.Y.S.2d 1029, 482 N.E.2d 1231).

For reasons stated herein we conclude, as did the courts below, that until plaintiff's rebuilding plans are considered by the Commission pursuant to the various ameliorati provisions in the Landmarks Law, the issue presented--whether the alleged interference with plaintiff's ability to carry out its charitable purpose amounts to a constitutional injury--is not ripe for judicial determination. The order of the Appellate Division should, therefore, be affirmed.

I

Recognizing the need for a comprehensive scheme to encourage the preservation of buildings and areas with historic or aesthetic importance, New York City adopted its Landmarks Preservation Law in 1965 (see, Administrative Code of City of New York, ch 8-A, § 205-1.0 et seq.). The pertinent provisions of the law may be briefly summarized. The primary responsibility for administering the law is vested in the Commission, which must include at least three architects, one historian, one city planner or landscape architect, one realtor, and at least one resident of each of the city's five boroughs (see, New York City Charter § 534). The Commission initially identifies properties and areas that have "a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation" (see, Administrative Code § 207-1.0[h] ). If the Commission determines, after giving all interested parties an opportunity to be heard, that a building or area satisfies the statute's criteria, it will designate a building to be a "landmark" ( § 207-1.0[n] ), situated on a particular "landmark site" ( § 207-1.0[o ] ), or will designate an area to be an "historic district" ( § 207-1.0[h] ). New York City's Board of Estimate may then modify or disapprove the designation, and the owner may seek judicial review of the final decision.

Final designation as a landmark imposes certain restrictions and obligations upon an owner of a landmark site. First, the statute requires that the exterior features of the building be kept "in good repair" (see, § 207-10.0[a] ). Violation of the maintenance and repair requirements subjects an owner to a fine of not more than $250 and not less than $25, or to imprisonment for not more than 30 days, or both (see, § 207-16.0[b] ). Second, the owner must apply to the Commission for advance approval of any proposal to alter the exterior architectural features of the landmark or to construct any exterior improvement (see, §§ 207-4.0--207-9.0).

Three separate procedures are available through which an owner may apply for administrative approval to alter a landmark site. First, the owner may apply to the Commission for a "certificate of no effect on protected architectural features", an order permitting the alteration on the ground that it will not change or affect any architectural feature of the landmark (see, § 207-5.0). Second, the owner may apply to the Commission for a certificate of "appropriateness" (see, § 207 6.0). The Commission must, with certain limited exceptions, act upon the application for such certificate within 90 days (see, § 207-7.0). It must grant the certificate if it concludes that the proposed construction on the landmark site "would be appropriate for and consistent with the effectuation of the purposes ( § 207 6.0 ) of the Landmarks Law. Denial of either certificate is subject to judicial review. The third and final procedure--the so-called "hardship procedure" (certificate of appropriateness on the ground of "insufficient return", § 207-8.0)--provides additional options, which are for the most part limited to owners of commercial sites. ²

II

In its complaint, plaintiff does not, unlike petitioners in Ethical Culture (supra), Lutheran Church (supra) and Sailors' Snug Harbor (supra), base its claim of injury on being compelled by the Landmarks Law to maintain and retain an unsuitable building which it wants to demolish. Here, plaintiff does not plan to replace the designated landmark. On the contrary, it proposes to renovate the church structure under a rebuilding program with a private partner, which includes a separate development for a commercial high-rise condominium.

Plaintiff alleges that its severely deteriorating church, built to seat a congregation of 1,400, is unsuitable and far too large for its current membership. Because the financial burdens of maintaining, repairing and heating the structure had become more than its small congregation could bear, plaintiff, in the years preceding the Commission's designation on November 24, 1981, had consulted with various developers and architects for the purpose of devising a rebuilding program "to provide a new building with appropriate facilities and income for plaintiff's continuing religious and charitable program, thereby assuring its survival." In its complaint plaintiff asserts that the Commission made the designation over its objection for the purpose of preventing its building plan and that, as a result, it "is now prevented from altering or reconstructing its church building without permission of the Commission". In addition, plaintiff alleges that the designation subjects it to the immediate repair and maintenance requirements of the Landmarks Law ( § 207-10.0) which it cannot afford to fulfill and which, if not complied with, expose it to criminal sanctions ( § 207-16.0).

Although it alleges that the landmark designation was intended to prevent it from carrying out its renovation program, plaintiff has never applied for a certificate of appropriateness (see, § 207-6.0) or sought other approval of its plans from the Commission. Indeed, from its own formulation of the issue in its brief on appeal, it is evident that at the root of plaintiff's claim of injury is its aversion to ceding any control of the building program to the Commission--not its concern over ultimate approval of the program by the Commission. ³

Defendants' answer initially included failure to exhaust administrative remedies as an affirmative defense. When they moved for summary judgment ⁴ defendants were permitted to substitute lack of ripeness for the defense of exhaustion of remedies. The affidavits in support of defendants' motion centered on the Landmarks Law's comprehensive scheme of regulatory options under which an owner can apply to the Commission for permission to alter, reconstruct or demolish a landmark site. In his affidavit, Commission chairman, Gene A. Norman, stressing the Commission's willingness to accommodate plaintiff's needs, stated: "If plaintiff were to submit an application for a certificate of appropriateness or a notice to proceed containing a specific proposal for the Church which meets the criteria of either appropriateness under § 207-6.0 or hardship under § 207-8.0 or the judicially-created hardship test, the Commission will grant the approval or relief as...