In this proceeding pursuant to CPLR article 78, petitioner, Joseph M. Mattone, Jr., challenges a determination by respondent, the New York City Landmarks Preservation Commission ("LPC"), dated June 10, 2003, denying his application to legalize the installation of vinyl fencing at his home.

The LPC, established by §3020 of the New York City Charter, is empowered, inter alia, to establish and regulate landmarks, portions of landmarks, landmark sites, interior landmarks, scenic landmarks, and historic districts (see New York City Charter §3020[6]). Owners of landmarks or property situated within historic districts are required to properly maintain said property (see Administrative Code §25-311).

New York City Charter §3020 and Chapter 3 of Title 25 of the Administrative Code of the City of New York (collectively, the "Landmarks Law"), require the LPC to approve all work and issue permits prior to the commencement of any work on landmarks or within historic districts (see New York City Charter §3020[6]; Administrative Code for the City of New York §§25-305 and 25-310). In deciding whether to issue permits, the LPC must consider:

(a) the effect of the proposed work in creating, changing, destroying or affecting the exterior architectural features of the improvement upon which such work is to be done, and (b) the relationship between the results of such work and the exterior architectural features of other, neighboring improvements in such district.

(Administrative Code §25-307[b][1]). Furthermore, in appraising such effects and relationships, the LPC must consider, inter alia, "the factors of aesthetic, historical and architectural values and significance, architectural style, design, arrangement, texture, material and color" [*2](Administrative Code §25-307[b][2]).

On June 24, 1997, the LPC designated the Douglaston Historic District a New York City historic district. In the Designation Report, the LPC stated, in part:

The Douglaston Historic District contains buildings and other improvements which have a special character and a special historical and aesthetic interest and value and which represent one or more eras in the history of New York City and which cause this area, by reason of these factors, to constitute a distinct section of the city ... .

[T]he Douglaston Historic District survives as an important example of an early twentieth-century planned suburb adapted to the site of a nineteenth-century estate; and ... the stylistically varied suburban residences, the distinctive topography, the landscaped setting, and the winding streets create a distinct sense of place and give the district its special character.

In November 2001, petitioner and his wife acquired the one-family colonial revival free standing house located at 111 Arleigh Road, Douglaston, New York (the "subject property"), situated within the Douglaston Historic District. Thereafter, petitioner undertook to perform certain work at the subject property.

However, by Warning Letters, dated November 29, 2002, the LPC notified petitioner of possible violations of the Landmark Law at the subject premises based on (1) the performance of facade work, including patching, without the necessary permit, and (2) the removal of a carport, replacement of windows, and the installation of a light fixture, without permits. On December 20, 2002, petitioner, attempting to avoid the violations, applied to the LPC to perform certain work at the subject property, including installing or maintaining aluminum clad windows, light fixtures, and vinyl fencing on an existing extension, removing a carport, and performing facade work. By letter, dated March 27, 2003, the LPC informed petitioner that his application was calendared for a public hearing to take place on April 22 or 29, 2003,^[FN1] and instructed petitioner to appear before Community Board No. 11, the advisory board to the LPC.

Petitioner appeared before Community Board No. 11 on May 22, 2003, and the board held a meeting the same day. In a letter to the LPC, dated May 23, 2003, regarding petitioner's application, Community Board No. 11 stated:

The fence is well hidden by maturing shrubbery and cannot be seen from the street. The committee has no objection to the fence. There are five aluminum clad windows which exist only on the existing extension. In size, shape and architecture the windows appear to conform to the remainder of the house. However, the committee defers to the LPC on the matter of the material of the window.

At the public hearing held by the LPC on June 3, 2003, to consider petitioner's application, petitioner noted his reasons for installing the vinyl fencing, stating:

My wife and I have three children, all under the age of five years old. The purpose of the fence for, getting right to it, is to pen them in ... . I would have put the wood fence in there-it was a [*3]lesser expense item to be quite frank with you. We were told that because of the amount of percolation problems of the water, the wood eventually would [deteriorate] and be a source of repair for us.

However, Julia Scheck of the Architecture Committee of the Douglaston Little Neck Historical Society, noted the society's objection to the installation of the vinyl fencing, stating, in part:

[W]e found the installation of vinyl fencing on the property to be inappropriate in the selection of material. And, even though the fence does not invade the required twenty-foot setback of the Douglas Manor Association covenants, these covenants do describe verdant landscape by requiring the setback, leaving room for greenery, and prohibiting fences, thus creating vistas not of individual, fenced-off gardens, but rather a continuous, green, park-like, landscaped environment.

In addition, in a letter, dated June 3, 2003, the Historic Districts Council ("HDC"), an advocacy group for New York City's Historic Neighborhoods, urged the LPC, inter alia, to deny petitioner's application, stating, in part:

The Historic Districts Council feels very strongly that to allow an applicant to legalize a violation of the Landmarks Law sends a very damaging message. An approved legalization is an admission that the Landmarks permit process is not integral to the preservation of New York's historic resources, an assertion, which HDC strongly with, and one that threatens the integrity of the New York Landmarks Law. If illegal work done to designated buildings is determined to be retroactively legal, then the function of granting permits may be called into question. Instead, HDC strongly urges the Landmarks Commission to have applicants with violations work closely with the staff and within the existing LPC guidelines [to] create a situation with the designated property that conforms in all instances to a level of appropriateness consistent with the law.

The submissions also include photographs of the subject property and the other improvements in the Douglaston Historic District. After the hearing, Commissioner Match Suna offered a resolution, which was unanimously adopted by the LPC, which denied the application for the vinyl fence on the ground that:

the vinyl material and shiny finish of the fence are not [in] keeping with the historic fencing material found elsewhere in the district, that the fence is visible from public thoroughfares [,] distracts from the significant architectural historic features of the building and streetscape, that the cumulative effect of the installation of the vinyl fencing is to distract from the special historic character of the Douglaston Historic District.

On June 10, 2003, the LPC issued a Certificate of Appropriateness notifying petitioner of its decision to approve only a portion of the work proposed in his application. The LPC stated, in part:

Pursuant to Section 25-307 of the Administrative Code of the City of New York, the Landmarks Preservation Commission, at the Public Meeting of June 3, 2003, following the Public Hearing of May 27, 2003, voted to deny the legalization of vinyl fencing installed without Landmarks Preservation Commission permits, and to approve the installation of multi-pane aluminum clad [*4]windows on the circa 1950 addition at the subject premises ... .

The work denied consists of the installation of vinyl fencing located on both sides of the house in front of the side yards. The work approved consists of the installation of six-over-six, double hung white aluminum clad windows in the circa 1950 addition ... .

With regard to the proposal for the legalization of the vinyl fencing, the Commission found that vinyl is not a material used historically in the historic district; that the shiny non-painted surface of the vinyl fence does not match the painted wood surface of the type of fences traditionally used in this historic district; that the fencing, visible from major public thorough-fares, projecting beyond the plane of the primary facade, and seen in conjunction with the historic house, detracts from the significant architectural and historic features of the building and the streetscape; and that the cumulative effect of the installation of the vinyl fencing is to detract from the special architectural and historic character of the house and the Douglaston Historic District. Based on these findings, the Commission found that this portion of the application was inappropriate, and voted to deny it.

Petitioner challenges so much of the LPC Certificate of Appropriateness as denied the legalization of the installation of vinyl fencing at the subject property. Specifically, petitioner argues that in deciding to deny this aspect of his application, the LPC acting irrationally in that it (1) improperly relied on a Douglaston Master Plan which required wood fences, which was not in effect at the time his application was considered, (2) relied too heavily on the testimony of Julia Schreck whose testimony alluded to the Douglaston Master Plan when she discussed twenty-foot set backs, and (3) failed to consider the lack of opposition to the fence from Community Board 11 and Kay MacDermott of the Douglas Manor Association.

Discussion

In an Article 78 proceeding, judicial review is limited to the question of whether the administrative agency's determination was warranted on the record and has a rational basis in the law. Pell v Board of Ed., 34 NY2d 222, 230-231 (1974); Chelrae Estates v State Div. of Hous. & Community Renewal, 225 AD2d 387, 389 (1st Dept 1996). The court may not substitute its own judgment for that of the agency (Rudin Mgt. Co. v State Div. of Hous. & Community Renewal, 215 AD2d 243 [1st Dept 1995]), and its consideration is confined to those issues properly raised in the administrative proceedings. Rozmae Realty v State Div. of Hous. & Community Renewal, 160 AD2d 343 (1st Dept), appeal denied, 76 NY2d 712 (1990). This standard of review applies to LPC actions. See Teachers Insurance and Annuity Assn. v. City of New York, 185 AD2d 207 (1st Dept 1992), aff'd 82 NY2d 35, 41 (1993).

Here, it cannot be said that it was irrational, arbitrary or capricious for LPC to deny the Certificate of Appropriateness with respect to the vinyl fencing installed at the subject property. As stated, §25-307(b) of the Administrative Code requires the LPC to consider the effect of the proposed work on the architectural features of the subject property and neighboring properties within the historic district. In the instance case, the record, including the transcript of the hearing on petitioner's application and the submissions of the Douglaston Little Neck Historical Society and the HDC, support the conclusion of the LDC that vinyl, a material not typically used in [*5]historic districts, does not match the painted wood surfaces traditionally used in said districts, and that "the cumulative effect of the installation of the vinyl fencing is to detract from the special architectural and historic character of the house and the Douglaston Historic District."

Petitioner argues, however, that the LPC acted arbitrarily and capriciously in denying his application to legalize the installation of the vinyl fencing since the Community Board 11 determined that the fence is hidden by maturing shrubbery and cannot be seen from the street. However, in reviewing the evidence from the hearing on petitioner's application, the LPC found that the shrubbery was insufficient to hide the fencing and was thus visible from major public thoroughfares, projected beyond the plane of the primary facade, and detracted from the significant architectural and historic features of the subject property and the historic district.

Next, with the exception of the testimony of Julia Schreck who apparently referenced the Douglaston Master Plan which was not in effect at the time of the petitioner's application, the record does not indicate that LPC's denial of petitioner's application for the vinyl fencing was based on this plan. Instead, the basis for LPC's denial, as set forth in the resolution and Certificate of Appropriateness, was a finding that vinyl fencing would detract from the special architectural and historic character of the house and the Douglaston Historic District. Finally, although a contrary determination might also be sustainable, as a rational basis for LPC's denial exists, the court may not substitute its judgment for that of the agency. Rudin Mgt. Co. v State Div. of Hous. & Community Renewal, 215 AD2d at 243.

Accordingly, it is

ORDERED AND ADJUDGED that the petition is denied and the proceeding is dismissed.

Dated: September 24, 2004

___________________

J. S. C.