Hilbertz v. City of New York

• Decision Date: 11 April 2019
• Docket Number: 520815/2017
• Citation: 98 N.Y.S.3d 776
• Parties: In the Matter of the Application of Errick HILBERTZ, Shirley Mondesir (Individually and as President of the St. Mark's Avenue Independent Block Association, Inc.), Janice Jarrett, Vincent Miller, Colleen Carter-Neblett, Robyn Berland, Adrian Straker, Lynn Cave, Bergen-Kingston Block Associate, Crown Heights North Association, Inc., Petitioners, v. CITY OF NEW YORK, New York City Landmarks Preservation Commission, New York City Housing, Preservation & Development, Institute for Community Living, Institute for Community Living Real Property Holding Corp., ICL St. Marks Avenue Apartments, L.P., Respondents.
• Court: New York Supreme Court

98 N.Y.S.3d 776

In the Matter of the Application of Errick HILBERTZ, Shirley Mondesir (Individually and as President of the St. Mark's Avenue Independent Block Association, Inc.), Janice Jarrett, Vincent Miller, Colleen Carter-Neblett, Robyn Berland, Adrian Straker, Lynn Cave, Bergen-Kingston Block Associate, Crown Heights North Association, Inc., Petitioners,

v.CITY OF NEW YORK, New York City Landmarks Preservation Commission, New York City Housing, Preservation & Development, Institute for Community Living, Institute for Community Living Real Property Holding Corp., ICL St. Marks Avenue Apartments, L.P., Respondents.

520815/2017

Supreme Court, Kings County, New York.

Decided on April 11, 2019

Attorney for Petitioners

Philip A. Solomon, Esq.

Jacqueline McMickens & Associates, PLLC

26 Court Street, Suite 1600

Brooklyn, NY 11242

Attorneys for Respondent City of N.Y.

Zachary W. Carter

Corporation Counsel of the City of NY

100 Church Street, Room 5-163

New York, NY 10007

Attn: Sheryl Neufeld, Esq.

Nicholas Ciappetta, Esq.

Max Sarinsky, Esq.

Attorneys for Respondent ICL

Christina H. Bost Seaton, Esq.

Richard B. Cohen, Esq.

445 Park Avenue, Ninth Floor

New York, NY 10022

Katherine A. Levine, J.

This CPLR Article 78 proceeding seeks to annul the Certificate of Appropriateness ("COA") granted by respondent New York City Landmarks Preservation Commission ("LPC") to respondent Institute for Community Living and its related corporate entities ("ICL")¹ that would permit construction of a new L shaped building around a free standing gothic mansion - the Dean Sage Mansion ("Mansion"). The Mansion is located at 839 St Marks Ave. in the Crown Heights North Historic District ("CHNHD" or "District").

Petitioners challenge the granting of a COA² on the grounds that LPC ignored the adverse impact that the new L shaped building will have upon the mansion and its accompanying garden because it would obliterate the free standing nature of the mansion and cut the parterre garden by two thirds. They allege that the mansion is "one of the most unique, oldest and important 19th century free standing mansions remaining in the District," and that its adjacent parterre garden is the last remaining original design formal garden within the historic district. (Amended Petition, ¶¶ 3). Petitioners assert that the vast garden grounds on the eastern side of the mansion "lend architectural space and context to the house... and provide passerby with a true sense of experiencing the green landscaped gardens of 19th century America." ( ¶ 19). They also contend that the approved plans are "out of character" and "out of scale" with the limestone street scape of St. Marks and that the granting of the COA was therefore not rationally related to the architectural and historic character of the district. They further contend that based upon some of the comments made by LPC Commissioners, the granting of the COA was affected by an error of law since it was based upon factors outside of those mandated by § 25-307(b) of the Administrative Code ("Code") and was "outcome dependent"( ¶ 72). During arguments before the Court, petitioners refined their argument to state that LPC was "entirely deferential to ICL's project, they considered the financial strength, the number of units and it seemed like lip service to the community and LPC should not have considered the economic arguments of the respondents." (Dec. 21 hearing at p. 6).

Both ICL and LPC contend that LPC's decision to approve ICL's proposal was a "well reasoned and rational determination of recognized experts" and came about only after extensive public discussion and modifications They also contend that LPC gave full consideration to the designation report, the historic nature of the District, and the mansion which ICL made extensive efforts to restore, before issuing the COA and that its determination should therefore be upheld. LPC also asserts that it has broad discretion in issuing a COA and that its issuance was in conformity with the law. However, they only minimally addresses petitioners' contention that the demolition of two thirds of the garden would adversely affect the free standing nature of the mansion and hence, the character of the historical district.

This is apparently the first case, within the lexicon of challenges to LPC's actions, to address whether the LPC, in determining whether to issue a COA to develop or change a unique building within a historic district, must consider the open space or landscaping component which defines the unique building. The core issue presented herein is whether the LPC, in granting the COA to allow the ICL to construct an additional building on more than 50% of the Victorian Garden, which both sides concede would impinge upon the free standing nature of the mansion, acted in accordance with its mission of protecting, enhancing and perpetuating the improvement and landscape features of the District. A number of the commissioners expressed their support for societal goals fostered by this project, indicated that they wanted to see the project done, and to that end deferred to the economic and fiscal constraints allegedly faced by ICL. This court therefore must construe N.Y.C. Admin. Code ("Code") § 25-307(b)(2) to decide whether the LPC was permitted to weigh these factors against the special historical and aesthetic character of the district, of which the free standing mansion, as framed by the garden, is a major component.

Procedural History

This proceeding was initially commenced by Order to Show Cause ("O.S.C.") by petitioners in late November 2017. Petitioners Derrick Hilbertz, Shirley Mondesir (individually and as President of the St Marks Independent Block Association ("SMIBA"), and the other named individuals are residents of the block or the immediate vicinity in which the mansion is located ("petitioners").Petitioners Bergen Kingston Block Association and Crown Heights North Association ("CHNA") are civic associations (sometimes referred to as "civic associations") charged with enhancing and preserving the particular block in question as well as the greater historic district.

Respondent LPC is a city agency established pursuant to the City Charter § 3020 et seq. and is charged with enforcing the law with respect to the establishment and regulation of landmarks and historic districts (§ 3020(6) ). It is comprised of 11 members, including three architects, a historian qualified in field, and at least one resident from each of the five boroughs. Respondent ICL is a 30 year old not for profit human services agency that provides housing counseling and other support services for individuals with mental illness, substance abuse and developmental disabilities.

The NYC Landmarks Law ("LL") was enacted in 1965 by the City Council in response to the City's loss of a number of its more significant historic structures, including the original Pennsylvania Station. See, Penn. Central Transp. Co. v. NYC, 438 U.S. 104, 109, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) ; Mtr. Of Save America's Clocks, Inc. v. City of New York , 157 A.D.3d 133, 66 N.Y.S.3d 252 (1st Dept. 2017). Section 25-301(a) of the Code contains a finding that many of the city's improvements and landscape features having a "special historical or aesthetic interest or value ...have been uprooted, notwithstanding the feasibility of preserving and continuing the use of such improvements and landscape features ...without adequate consideration of the irreplaceable loss" that such uprooting causes. Section 25 -301(b) of the LL declares that the purpose of the law is to effect and accomplish the "protection, enhancement, and perpetuation of...improvements and landscape features and of districts which represent or reflect elements of the city's historical aesthetic and cultural heritage."

In April 2007, the LPC issued a Designation Report ("Report") for the CHNHD.³ The Summary of the Report indicates that the district contains "some of Brooklyn's finest and most detailed row houses, ...freestanding residences ...dating from the middle of the nineteenth century to the 1930s." (Report at 4). It also states that "(t)he district is among Brooklyn's most architecturally distinguished areas...featuring a broad array of outstanding residential architecture." Id. After improved transportation links with the Fulton Ferry, the area underwent "suburban development" in the 1850s, characterized by freestanding villas on spacious lots. While most of these villas were "swept away" by development, a few remained within the district including the 1870 Dean Sage mansion, which is a rare High Victorian Gothic residence designed by Russell Sturgis, a master of that style. (Report at 4). The main section of the Report states that the Mansion is one of the couple of early freestanding houses that remains and serves as a "well preserved reminder of northwestern Crown Heights suburban years." (15).

The Report then devotes a paragraph to the architect of the residence - Russell Sturgis - as an "eminent architect, writer and authority on art and architecture," and notes that the "Sage Residence is one of a few of his extant designs in New York City." (p. 58). While the Report devotes four pages to the Russell Sage Residence (pp. 263-266 it allocates at more one half page to the other significant buildings in the District. The Report reiterates that Sturgis is considered one the of the High Victorian Gothic Style's "finest practitioners" and that the Sage Mansion is a "rare example" of one of his houses in New York City Sage resident and is "one of the oldest and most important nineteenth-century mansions remaining in the District." (p. 263). Although some changes were made to the mansion throughout the years, including the elimination of the front porch "it remains remarkably intact" and was a private residence through the 1930s. (Id. ). A tan brick three and a half story dormitory was attached to the north and west side of the mansion at some point in the ...