Lutheran Church in America v. City of New York

• Decision Date: 21 March 1967
• Citation: 27 A.D.2d 237,278 N.Y.S.2d 1
• Parties: LUTHERAN CHURCH IN AMERICA, Plaintiff-Appellant, v. CITY OF NEW YORK and the Landmarks Preservation Commission, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 1

278 N.Y.S.2d 1

27 A.D.2d 237

LUTHERAN CHURCH IN AMERICA, Plaintiff-Appellant, v. CITY OF NEW YORK and the Landmarks Preservation Commission Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

March 21, 1967.

Henry N. Ess, III, New York City, of counsel (David M. Huggin, New York City, with him on the brief, Sullivan & Cromwell, New York City, attorneys), for appellant.

Robert D. Bentley, New York City, of counsel (Stanley Buchsbaum, New York City, with him on the brief, J. Lee Rankin, Corp. Counsel), for respondents.

Before BOTEIN, P.J., and EAGER, CAPOZZOLI, TILZER and McNALLY, JJ.

PER CURIAM:

The plaintiff-appellant's building, the Lutheran Church House, formerly the residence of J. P. Morgan, Jr., after a public hearing, was designated as a landmark by the respondent Landmarks Preservation Commission on November 23, 1965, pursuant to the Landmarks Preservation Law (Local Law No. 46, April 19, 1965).

The appellant's summons and complaint were served in July of 1966 and asks for a judgment that the Landmarks Law is unconstitutional as applied to appellant, because it deprives appellant of its right to the free exercise of religion; it constitutes a taking of property for public use without just compensation; it denies appellant equal protection of the law; it is unlawful delegation of legislative authority; and because it is an invalid exercise of the police power of the state. The order appealed from held that CPLR 217, which prescribes a four months' statute of limitations for article 78 proceedings, is applicable to this action for a declaratory judgment and that appellant's action, commenced approximately proximately eight months after the designation of the Lutheran Church House as a landmark, is time barred.

We accept the respondents' characterization of the proceeding as an attack on a local law which became applicable to the appellant only through administrative action. We further acknowledge that an article 78 proceeding would not have been an improper means to challenge the constitutionality of the local law. We disagree, however, assuming as we must for the purposes of this appeal that the Commission's designation of appellant's property was an unconstitutional act, that a proceeding under article 78 being available, the appellant may not resort to another remedy but is confined to an article 78 proceeding and the limitation applicable thereto. We recognize nonetheless that resort to another remedy in the circumstances may be said to frustrate the legislative policy requiring prompt review of administrative determinations.

The constitutionality of a law, nevertheless, may not depend upon whether it is self-executing or not self-executing. The Landmarks Law could not be tested in a vacuum and no justiciable controversy could have arisen if appellant had brought its action prior to the designation. It was the fact of administrative action, the application of the statute to the appellant's building, which enabled the appellant to relate the designation to the irreparable harm to appellant caused thereby. The circumstance that the appellant's action was not viable until the designation of its building as a landmark does not convert its action into an article 78 proceeding. The appellant, moreover, does not seek to review the Factual determination made by the Commission, where the four months' statute of limitations might be applicable, but attacks the constitutional power of the administrative body to apply the Landmarks Law to it in the first instance.

Where an administrative act is attacked on the basis that the body acted without power and its...