| Matter of Hilbertz v City of New York |
| 2019 NY Slip Op 29108 [64 Misc 3d 697] |
| April 11, 2019 |
| Levine, J. |
| Supreme Court, Kings County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, August 28, 2019 |
| In the Matter of Derrick Hilbertz et al., Petitioners, v City of New York et al., Respondents. |
Supreme Court, Kings County, April 11, 2019
Jacqueline McMickens & Associates, PLLC, Brooklyn (Phillip A. Solomon of counsel), for petitioners.
Christina H. Bost Seaton and Richard B. Cohen, New York City, for Institute for Community Living, respondent.
Zachary W. Carter, Corporation Counsel, New York City (Sheryl Neufeld, Nicholas Ciappetta and Max Sarinsky of counsel), for City of New York, respondent.
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)[FN1] that would permit construction of a new L-shaped building around a freestanding 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 COA[FN2] 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 freestanding 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 {**64 Misc 3d at 699}architectural space and context to the house . . . and provide passer[s]by 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 streetscape 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 section 25-307 (b) of the Administrative Code of the City of New York and was "outcome dependent" (¶ 72). During arguments before [*2]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 tr at 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 address petitioners' contention that the demolition of two thirds of the garden would adversely affect the freestanding 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 freestanding nature of the mansion, acted in accordance with its mission of protecting, enhancing and perpetuating the improvement and landscape{**64 Misc 3d at 700} 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 Administrative 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 freestanding mansion, as framed by the garden, is a major component.
Procedural History
This proceeding was initially commenced by order to show cause 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 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 New York 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 the 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 issues and developmental disabilities.
The New York City Landmarks Law (LL) (Administrative Code of City of NY, former ch 8-A, § 205-1.0 et seq., now Administrative Code of City of NY § 25-301 et seq.) 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 New York City, 438 US 104, 109 [1978]; Matter of Save America's Clocks, Inc. v City of New York, 157 AD3d 133 [1st Dept 2017].) Section 25-301 (a) of the Administrative 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 {**64 Misc 3d at 701}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 "as a matter of public policy . . . the protection, enhancement, and perpetuation of . . . improvements and landscape features of special character or special historical or aesthetic interest . . . is a public necessity." To that end, the purpose of this chapter is to "effect and accomplish the protection, enhancement and perpetuation of [these] improvements and landscape features and . . . districts [and to] . . . safeguard the city's historic, aesthetic and cultural heritage" (Administrative Code § 25-301 [b] [a], [b]).
In April 2007, the LPC issued a designation report for the CHNHD.[FN3] 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." (Report at 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" (at 58). While the report devotes four pages to the Dean Sage residence (at 263-266), it allocates more than one-half page to the other significant buildings in the district. The report reiterates that Sturgis is considered one of the High{**64 Misc 3d at 702} Victorian Gothic style's "finest practitioners" and that the Sage mansion is a "rare example" of one of his houses in New York City and is "one of the oldest and most important nineteenth-century mansions remaining in the District" (at 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 3
The LPC "walking tours" for Crown Heights North (exhibit F to ICL's papers) state that St. Marks Ave. became one of Brooklyn's "finest residential corridors" after 1850 and that the Dean Sage "corner House" dates to 1870 and is among the "oldest and most important buildings in the district. It is a rare surviving residence by Russell Sturgis, the architect best remembered as editor of the multi-volume Dictionary of Architecture and Building."
Petitioners describe the eastern side of the mansion ("which would be largely obscured [*3]by the planned extension") as looking out upon landscaped grounds which were allowed to fall into disrepair but are repairable. This garden frames the mansion and "lend[s] architectural space and context to the house's severe gray stone and provide[s] passer[sby] with a true sense of experiencing the green-landscaped gardens of 19th Century America." (Amended petition ¶ 19.) The petition then states that this is the "LAST REMAINING original-design formal garden within the district" which contains sunken brickwork and a sundial (id.).
The ICL correctly points out that the designation report did not discuss the garden much less describe it as the last remaining original design formal garden within the district. Rather, the report merely states that there is a grass yard with trees running in front of the south projecting bay and there is a large east yard with brick pavers and planting beds (at 266). It is undisputed that neither the mansion nor the garden were ever designated as a landmark by the LPC.
In or about 1998, ICL acquired the mansion and commenced operating a community residence as an Office of Mental Hygiene licensed traditional housing center for 48 mentally{**64 Misc 3d at 703} challenged adults until it was closed as part of the premises' redevelopment plan. In 2015 ICL embarked on a plan to expand the mansion premises so that they would meet "ICL's programmatic needs" of creating supporting housing (i.e., "long-term, affordable subsidized housing with onsite services for residents" [ICL answer ¶ 28]), and eliminate its single room occupancy housing. During a review of its portfolio, and taking into consideration cost, ICL determined that the mansion offered "a possibility for expansion" as it had approximately 41,500 buildable square feet of unused development rights. This development was subject to the approval of the LPC since the mansion was located in the Historic District which posed its own challenges. (Answer ¶ 18.) ICL retained Easton Architects and Dattner Architects; Easton completed an existing conditions survey (ECS) in May 2015.
The ECS summary first stated that Russell Sturgis was a renowned architect who was commissioned to design several buildings at Yale. The Sage residence, which was built in 1870, was "rather sophisticated in its massing and detail" and was surrounded by elegant grounds and had a large front porch. The ECS then noted that the Sage residence is "one of the only surviving Sturgis buildings left in NYC" and that the CHNHD offers an "outstanding example of mid-late 19th century American styles" (at 11). Four pictures included within the ECS show a garden with stone walls and parterre tiles. Although the erstwhile garden is in a state of disrepair, the court can discern its once elegant and formal layout. Finally, the ECS finds that the building's exterior retains much of the original historic fabric, "honoring the original architectural design intent," and that the "architectural character and identity of the building's exterior remains intact."
The ICL Plan
The Easton team determined there were innumerable inefficiencies in the design of the 1930s addition that made its use unfeasible. Both architectural firms prepared an initial proposal for the redesign of the premises and "had several meetings with staff at the LPC," and, based upon the staff's feedback, the initial change design was changed.
On or about February 25, 2016, ICL completed an application for a COA and submitted it to LPC. ICL's presentation before the LPC called for the demolition of the rear addition at the north end of the mansion, restoration of the Dean Sage residence and construction of an L-shaped building around the{**64 Misc 3d at 704} original mansion (new building) which would consist of 5
The pictures included in the exterior restoration depict a vast side yard garden that effaces the entire eastern stone wall of the existing mansion as well as the eastern wall of the 1930s addition from St. Marks Ave. to the northern property line. The pictures reveal a freestanding mansion from the vantage point of St. Marks Ave. looking north. While the garden is in a semi state of disrepair, portions of it still appear to be verdant with overgrown grass, trees and bushes, and remnants of the Victorian garden, such as a circular brick area with a fountain and/or sundial, remain.[FN4]
The architectural renderings by ICL architects of the proposed new buildings (exhibit J to City's answer) reveal that more than half of the garden would be eliminated by the new building looking north from St. Marks Ave. and that the two wings of the new building (effacing both Brooklyn and St. Marks Aves.) are massive. In the section entitled Original Scheme, the second photo entitled "Looking north east from St. Marks Ave," which superimposes a photo of what the new building would look like on St. Marks Ave., completely eliminates the sense that the mansion is freestanding or that there is a deep set garden as it depicts a small patch of greenery in front of the new building.{**64 Misc 3d at 705}
It is not disputed that once ICL submitted its presentation to the LPC, LPC made the same publicly available in advance of the March 22, 2016 public hearing. ICL also avers that it submitted its initial plan to the CB 8 Housing and Land Use Committee. ICL also claims to have attended meetings with petitioners SMIBA and CHNA.
On February 6, 2016, the NYC Department of Housing Preservation & Development (HPD) wrote to petitioner Hilbertz that it was undertaking a review of the project site in accordance with section 106 of the National Historic Preservation Act of 1966 (16 USC former § 470f, now 54 USC § 301608), since the project site was located within boundaries of the State and National Register of Historic Places. HPD found that the project "could result in indirect visual impacts due [to] its massing, facade materials and fenestration being different from the historic buildings prevalent in the area." It also determined, in consultation with the State Historic Preservation Office (SHPO), that the proposal would "constitute an adverse effect on historic properties under § 106." This was based upon the information provided, as well as SHPO's review of an alternative analysis provided by the sponsor and its architect, which concluded "there were no feasible alternative[s] that would meet the goals and objectives of the project as currently [*5]proposed." SHPO ultimately found, by letter dated September 29, 2016, that based upon the modification of the initial design, there was an appropriate change that lessened the visual impact of the proposed new construction on the historic buildings as seen from St. Marks Ave.
By letter dated February 23, 2016, CHNA notified the LPC that it was "deeply concerned" that the proposed two, large institutional buildings would "adversely affect the historic and architectural qualities of the property and the immediate neighborhood." The importance of this detached mansion on its spacious lot "should not be understated" since the LPC designation report states that "it is one of the oldest and most important nineteenth-century mansions remaining" in the district. Disputing the applicants' statement that the land is "unused," the CHNA stated that the land is actually a "character defining feature of the mansion. Mansions are inherently different from other buildings in the district . . . as they are detached and the open spaces of the grounds are a significant feature of their context." It then stated that ICL's proposal to provide 75 units of affordable housing was "out of {**64 Misc 3d at 706}scale and overwhelms the Mansion." CHNA suggested that ICL retain and rehabilitate the 1921 Brooklyn Ave. addition and/or use its other property holdings to expand since "it is completely inappropriate to compromise a landmark site when there are other options to build elsewhere."
By letter dated March 15, 2016, CB 8 informed the LPC that its members voted overwhelmingly in favor of withholding support for the ICL's proposal because the project is "grossly out of character with the street scape of limestone rowhouses." (Exhibit F to petition.) Despite ICL's having scaled back the mass and bulk from its original proposal in January 2016 so that the side yard and some of the garden facing St. Marks would remain, CB 8, on behalf of local community groups, requested that another location be selected since the project would "completely alter the visual elements that warranted historic designation."
By statement dated March 16, 2016, SMIBA informed ICL that it had "completely rejected" the proposal. It was particularly opposed to the destruction of the garden at St. Marks Ave. which "is an integral part of the Mansion's free standing design" and believed that the project would "overwhelm the historic Mansion[,] . . . change the neighborhood's landscape" and cause a myriad of other problems (Exhibit E to petition.)
On March 22, 2016, LPC held a public hearing to consider the COA. LPC staff member Mr. Knowles introduced the mansion as a "High Victorian Gothic freestanding mansion." Joseph Beaver testified that ICL was switching to permanent supportive housing which offers more independent living in self contained apartments and mixed populations for a "more normalized environment." "The rehabilitation of the mansion and current extension" was not feasible from a development and operating services standpoint because the current space was outmoded and not in line with contemporary housing standards. He indicated that HPD, which was the likely source of financing, required at least 50 units minimum for a project to be efficient and this could not be achieved through simple rehabilitation. The plan was to remove the obsolete extension, renovate and restore the mansion and build 75 units of mixed housing, creating 45 units of supportive housing for mentally ill adults (reduction of three units—current population of 48) and 30 new units of "much needed affordable housing . . . in one of the most rapidly gentrifying neighborhoods" (tr at 7).
Lisa Easton, the principal architect of Easton Architects, summarized that the proposal called for the restoration of the{**64 Misc 3d at 707} historic mansion and site features, as well as the removal of the 1920s and 1930s additions which were "institutional" and not in keeping with the character or identity of the site (tr at 15). The design team determined that they could not adaptively reuse the [*6]existing additions for the new purposes ICL intended to introduce. John Woelfling, a partner with Dattner Architects, described why the existing extension could not be adopted: the floor plate depth was too shallow (34 feet as compared to the ideal depth floor plate of 58 feet); the corridor was too narrow; an elevator introduced took up more useable floor area; and all of these inefficiencies were just "not practical." (Id. at 14-15.) Easton stated that contextually, St. Marks Ave. had front yard setbacks at the smaller residential scale right next to the ICL site which was "a very character defining element to the block" (at 16). With the neighborhood in mind, ICL planned an L-shaped building and scaled down the addition from a full build-out to "something more contextual that had a better relationship with not only the mansion, but also the adjacent residential buildings along St Marks and Brooklyn Avenues" (tr at 18). The main entrance to the extension comes from St. Marks Ave. so that the front of the mansion would still be perceived as the front of the building and site. They also pulled the building back from St. Marks to be "not only deferential to the mass of mansion" but to retain some of the open space. With respect to the garden, Woelfling testified that they were able to "maintain some of the landscaping features . . . as an outdoor space" (tr at 19). Neither Easton nor Woelfling addressed the unique stand-alone nature of the mansion. Woelfling concluded that "[y]ou really see the full effect of the building being recessed, the open space, and how this residential building really retains its prominence on the block . . . and is deferential to the mansion" (tr at 25). The corridor between the mansion and additional building lined up so that the site planning was deferential to the mansion. (Tr at 27.)
Chair Srinivasan noted that "the whole design approach is to try and get the development that you need that will fulfill your mission and we understand that you have funding in place, that you're not using your full square footage," and that the design approach and site planning is to have the new building break free from the main mansion in one sense so that the latter can be viewed three dimensionally, which is "a great thing." (Tr at 27-28.) The Chair then questioned whether, given the new set of zoning regulations in place requiring a rear yard at{**64 Misc 3d at 708} the back of the addition, ICL had pushed the building to the rear as much as they could and whether "there is more flexibility to push portions of the building further?" (Tr at 28.) Mr. Woelfling admitted that there was some flexibility in site planning but that if they pushed the building all the way back to what would be permitted by the zoning resolution it would become a "forgotten end space," a space "you could not use." (Tr at 28-29.) He stressed the importance of the alignment of the existing corridor with the proposed corridor from a security perspective and that if the additions went too far back, there would be a lot more circulation that becomes very circuitous (tr at 29). Chair Srinivasan then queried what the right dimension would be to allow ICL to accommodate its square footage yet still allow the mansion to breathe.
Shirley Mondesir, president of SMIBA, commented that the lot mentioned in the proposal was actually a garden which was salient to the issue before the LPC because "mansions are distinguished from other historical buildings as the land or gardens are the open spaces which significantly enhance and address features of their particular mansion." (Tr at 36.) While the Association understood and was not opposed to the need for affordable housing, the "squeezing two buildings into this property" on an already saturated block was not beneficial to the community, and approval of the project of such magnitude would have "an adverse effect on the contextual nature of the block" and would "set a precedent for further development" (tr at 38).
Barbara Zay of the Historic District Council stated that the application "inarguably represents a major change to the character of the building and its context" and that [*7]more efforts should be made to respect the mansion, especially on the St. Marks Ave. side "where more bulk should be sacrificed and setback to retain and honor the mansion's freestanding orientation and allow for some breathing space." (Tr at 39.)
Petitioner Derrick Hilbertz stated that it would be a "travesty" were the LPC determination to "turn on issues of brick color or metal shininess." (Tr at 40-41.) Rather, the core issue behind the COA was that "this block is the definition of why we have a Historic District. This is one of the last freestanding mansions. It's a feature that defines the area." (Tr at 41.) He testified that the addition has a "rudish blockishness" that has nothing to do with the area and would destroy two thirds of the garden which "was an integral part of the Mansion" and {**64 Misc 3d at 709}"defines the Mansion." (Id.) He also testified that it was absurd to take the garden away and that the addition was not the sort of thing that the district was created to protect (tr at 42).
Commissioner Baron inquired whether ICL had explored only developing the Brooklyn Ave. side and taking advantage of its full depth. Woelfling stated that if the site were longer in the north-south direction they could have introduced an L into the building, but that there was very limited dimension there. They could have taken down some of the mansion and put more mass there "but that would not make sense." Some unidentified speaker stated that the land is very valuable and that there is pressure to utilize the land efficiently as well as the economic pressure scale which is a minimum of 50 units to operate and provide services (tr at 49-50).
Commissioner Srinivasan then closed the hearing. She recognized that this was a "very challenging site" because there was an "incredibly distinguished mansion" that sits on the corner. On the other hand the land was large enough for the nonprofit to really expand their mission on this site and, conceptually, the Commissioner thought their approach was "appropriate." (Tr at 51.) She noted that since Brooklyn Ave. already had an enlargement, which in some ways compromised the freestanding nature of the mansion along Brooklyn Ave., she agreed with the approach of putting more mass there which would actually expose more of the mansion to the north on Brooklyn Ave. She noted that the garden was currently juxtaposed next to the mansion and that the "approach was to try and keep that feeling" (tr at 52) and that was why she had asked whether they could push the building back further. However, since the proposal would allow the garden space to be about 60 feet deep, there were landscaping designs that would still "allow for the mansion to look and feel as if it's within a garden space" (tr at 53). There was definitely "the potential to define this project a little further" and still allow ICL to get the massing and the type of configuration they had right now, such as only having one entrance rather than two entrances on St. Marks Ave., and somehow allowing "the garden to continue along the streetscape." The two entrances made the lot look subdivided, but with one entrance the addition could be read more as a background building and, along with the landscaping, it could "still read in a way that the mansion is separate or within a garden" (tr at 54).
Chairman Goldblum then stated that this project was a "gauntlet thrown down to us to figure out how to make . . . {**64 Misc 3d at 710}this work because the mission . . . that this institution has is incredibly important. The need is very, very, very significant and I think we should do our utmost to try to make it work." (Tr at 54-55.) He continued that there was "a lot interesting" about this application and that the site plan tried to be as deferential as possible to the mansion including the very deep setback along St. Marks, all of which were "efforts to allow for the mansion to be read as a single object, a freestanding building and I think that they're successful in that regard" (tr at 55). Goldblum thought the offsetting of the additional building away from the mansion was effective and that the garden in front of St. Marks Ave. was very adequate and allows for the building to [*8]be read as a single-family freestanding mansion. Finally, he suggested increasing the massing on the Brooklyn side and recessing it on St. Marks where it does not defer enough to the mansion, "so that the impact of the building was lessened on that facade." (Tr at 58-60.)
Chair Srinivasan stated that "I think we as a commission should try and find ways to still allow them that program." (Tr at 62.) Goldblum stated that while the top of the proposed building successfully emulates the scale of the adjacent town houses, which was appropriate for Brooklyn Ave., the point on St. Marks Ave. would be to "suggest the continuity of the garden as a feature even though it's not going to be the full site" (tr at 64). To that end, Goldblum suggested that ICL take half a floor and place it on Brooklyn Ave. so that the new building effacing St. Marks Ave. could defer to the mansion rather than being pulled back again to the street. By reducing the scale of St. Marks it would make "more successful the attempt to recall the openness, the deferral to the house of the open space" (tr at 64-65). The Chair suggested that ICL explore on the St. Marks side some sort of setback off to the fourth floor, to "see how they can recapture that square footage elsewhere" or "some more bulk on the Brooklyn Ave. side line or even expand the unit to the lot line to get more units." (Tr at 67.) She also suggested that ICL explore having just one entrance on St. Marks Ave. and look at the landscaping "to soften the positioning of the mansion within the complex" (tr at 67).
In response to the LPC public hearing on March 22, 2016, and pursuant to suggestions made by several Commissioners, Easton and Dattner Architects prepared a revised plan. By affidavit dated April 12, 2016, John Woelfling stated that under the revised plan (exhibit C) the planned L-shaped building located{**64 Misc 3d at 711} on St. Marks Ave. would be scaled back to 4
By letter dated April 12, 2016, Joseph Coppola, principal of Dattner Architects, echoed Woelfling's comments and opined that the entrance should remain on St. Marks Ave. due to the fact that "the Mansion's main entrance and orientation relates to St Marks Avenue." He recommended that a side paved walkway be "unobtrusively introduced" to the new addition which would allow the historic fence and low stone wall to be uncut and unchanged on St. Marks Ave. allowing for "one central entrance point in front of the Mansion."
By letter dated April 11, 2016, petitioner Hilbertz stated that the LPC's discussion during the March 22nd meeting about the appropriateness of the proposed new structure "veered sharply towards considerations outside of the intent and purpose of the [LPC] and of the Historic District designation under which this project must be considered." Hilbertz stated that the LPC first acknowledged the importance of the work to the community by the current occupant—ICL—and from that point forward, discussion centered not on whether the proposed structure should be built on "such an important part" of the designated district, but primarily on "aesthetic details of [*9]what shapes and material are appropriate for the proposed building." Hilbertz contended that the "strongest counter suggestion" seemed to be to move the main mass of the proposed building further north so as to occupy less of the property's original garden. Hilbertz contradicted LPC's contention that the garden was merely a{**64 Misc 3d at 712} "plot" or an "afterthought." Rather, the garden was integral to the architectural design of the property—it was a formally arranged garden with original herringbone masonry pathways, a stone amphitheater and a sundial surrounded by an original wrought iron fencing atop original stone masonry. He stated that the garden "literally defines the house as a free standing mansion, creating the offset needed for such: it is the space that defines the form." Building a new large modern building would envelop the mansion on two sides and demolish almost all of the garden. This "will obviously and manifestly destroy the special 'sense of place' of this location."
On April 12, 2016, the LPC held its second hearing on the ICL application for a COA. Ms. Ripples summarized that the LPC raised two primary concerns during the public hearing: that the height of the building on St. Marks Ave. detracted from the historic mansion and that the break in the new wall and new entrance on St. Marks diminished the primary entrance of the mansion and the historic garden context. "The commission asked the applicants to explore setting back the building after the 4th floor on the St. Marks side and to relocate that bulk to the Brooklyn Ave side," and also explore the relocation of the entrance to preserve the garden context (tr at 4-5). Ripples then stated that ICL had returned with revisions: the new building on St. Marks was now four stories with the fifth half floor being set back and the building on Brooklyn Ave. was raised to a full six stories with no setback. The entrance points to the mansion were consolidated to the new historic entrance through the garden wall.
LPC Chair Srinivasan first stated that ICL "had been very responsive to our issues and concerns" (tr at 6). The Chair stated that the small move of only having one entrance from St. Marks Ave., i.e., the original entrance to the mansion, will address "at least a perception from the street that it still remains one complex," as opposed to it feeling "like two buildings." She also applauded ICL for putting more mass and height on Brooklyn Ave. in accordance with the suggestion of two Commissioners (tr at 7). Commissioner Goldblum commented that the project
"is going to be a balance. It's an adaptive reuse of an individual house to do something very important and very unfortunately rare, which is to provide some very highly needed low-income housing. So I think our ability to work with them is very, very{**64 Misc 3d at 713} important and I think a positive outcome for this is as important for the city" (tr at 8).
The increased massing on the Brooklyn Ave. side, which was the "less important side," preserves "one of the most distinctive aspects of the building . . . which is the deep garden and small scale of the St. Marks Avenue side." (Tr at 8.) Srinivasan then stated that the proposal was about "striking a balance" between a historic district with a mansion that did not have an individual designation but was a "prominent building" against the fact that the ICL had occupied the mansion for several decades and they were providing affordable housing which had its "own realities" including the need to have a certain number of units to make it viable, i.e., 70 units (tr at 10). Furthermore, the rendering indicated that the building was pushed back significantly from the street which "still allows the mansion to be viewed from several sides, not completely in the round, but it never was to begin with." (Id.)
Commissioner Chapin then recommended approval of the proposal and the granting of a COA to demolish the existing rear and side yard addition on Brooklyn Ave., restore the exposed facades of the historic mansion in rusticated sandstone, and construct a new L-shaped building composed of two wings: a four story wing set back from St. Mark Ave. with a setback [*10]penthouse on the fifth floor and a six story wing on Brooklyn Ave. Among the findings pertinent to this proceeding were that the existing 1930s addition did not relate to the historic mansion in terms of style, scale, or materials and hence its demolition would "not detract from the special historic and architectural character of the mansion of the CHNHD" and that its demolition would allow for the restoration of the historic facades of the mansion "returning [it] to a more freestanding building" (tr at 11). The LPC also found that since the mansion already had substantial additions at the site far longer than it was freestanding, the proposed building was in keeping within this context (tr at 11-12); that setting back the new building from both streets would allow the mansion to appear in the round and maintain the prominence of the historic mansion at the corner; that the "deep setback location" of the building on St. Marks Ave. "will preserve the presence of the historic garden context of the house, the lot and the historic green space" (tr at 12-13); and that the new building will connect with the historic mansion at the first floor only via a glass enclosure which will expose the stone facades and minimize the physical impact of the new building. With specific respect{**64 Misc 3d at 714} to landscaping, Chapin noted that the "historic landscape features in the St. Marks Ave garden and the perimeter wall and fence will be retained recalling the historic building, and garden and site conditions" and that the proposed entrance to the new building utilizes the historic approach and existing garden paths, thus allowing the historic perimeter wall to remain intact which reenforces the "retention of the garden context." (Tr at 15.) On April 12, 2016, the LPC issued a status update letter to ICL informing them that LPC had approved its proposal to alter the facades, demolish an addition and construct a new building. On June 28, 2017, the LPC issued a permit COA to ICL which reiterated all the findings set forth by Commissioner Chapin during the April 12th hearing.
Hearings before Court and Court's Finding as to the Effect of the Addition upon the Historical Garden
The court initially signed a temporary restraining order (TRO) preventing ICL from tearing down any structures or beginning construction on the lot. At the first hearing held on November 28, 2017, on whether to continue the TRO, the court focused the parties on the primary issue raised by the case: "there is an additional building that's taking place, that's impinging on this garden and it is somehow affecting the beauty, the historic landmark worthiness of this building." (Nov. 28 tr at 10.) During oral argument the court requested the parties to address why the new buildings could not be reconfigured or the program changed so that more of the Victorian garden could be retained, thus allowing the mansion to retain its stand-alone status on St. Marks Ave. The court also inquired whether it was even within the purview of the LPC's mission to consider factors such as ICL's economic challenges in funding the project and/or the societal merits of housing for the mentally challenged, and whether LPC could balance the merits of ICL's need to build a certain number of units against the detriment such project would cause to the historic district.
Mr. Sarinsky, Assistant Corporation Counsel for the City representing the LPC, first distinguished between a landmark district and property and stated that in the former the LPC simply had to determine whether the work was appropriate for the context of the landmark district; there was no blanket rule against work on the site or work next to the mansion. He stated that Landmarks takes the applications as they are proposed and that it is not within its province to suggest other locations{**64 Misc 3d at 715} on which to build; "Either it is appropriate or it is not" (id. at 12). Nor was Landmarks supposed to review the merits of the placement of assisted living and affordable housing which was separate and apart from Landmarks' domain of looking at "aesthetics and the architectural design standards, which is a question of taste . . . [I]t is a question of judgment and aesthetics and [*11]Landmarks reviewed it as they would any other application." (Id. at 13.)
ICL then stated that it would be irreparably harmed were the court to continue the TRO since private equity lenders and the City decided they would not close until the issue was resolved. Curiously, Sarinsky then volunteered to discuss the financial aspect of the program and the need to protect the complex financing of the project. Of the $41 million committed in financing, the City was to give $7.9 million. These financial commitments were contingent on the project moving forward "under certain conditions, interest rates, [and] construction costs . . . . [T]hese were all considerations that were made" (id. at 23). Sarinsky also noted that ICL "is a non-profit organization who cannot just reach into their pocket like some other developers . . . such that if construction was delayed it would likely increase the cost of the construction." (Id. at 23-24.)
In response to the court's query as to whether petitioners were concerned about the mass of buildings on both the Brooklyn Ave. and St. Marks Ave. sides, Phillip Solomon, attorney for petitioners, stressed that his major concern was that the building, even after being set back on St. Marks Ave., would decrease the garden by approximately 60% to two thirds (tr at 26, 29). No party contested that the garden is not open to the public, although ICL stated that they occasionally allowed community organizations to use the garden for meetings. The City and ICL argued that the designation report hardly discussed the garden and that it had no historical significance (tr at 30-31), to which the court replied, "They designate the whole area. So whatever is within there, is within there. The garden—and supposedly it enhances this building, which is part of the essence of the whole neighborhood, it has to be taken into consideration."
The court then requested petitioners to delineate on what legal basis the court could reverse the granting of the COA. Solomon stated that the COA was not issued properly because the LPC "didn't seem to advocate the very thing they were created to do, which is to preserve the architectural aesthetics{**64 Misc 3d at 716} and beauty of the community" (tr at 32-33), and that it was clear from the transcripts that when the LPC actually voted for the COA, they deferred almost entirely to ICL's architects (tr at 33). Solomon pointed to the Chair's comment that "we have to get ICL's . . . program going." (Tr at 33.) Solomon also stated that while the Chairperson was concerned about the entrance to the new building, she never discussed the diminution of the garden.
The court inquired of the City whether the LPC debated how much of the garden to preserve within the context of ICL's claim that it needed to build 70 units to make the financing feasible, to which Mr. Sarinsky responded "no" (tr at 44). After ICL asserted that there had to be a certain ratio of supportive housing to affordable housing and a certain number of units to make the financing work, Mr. Sarinsky interjected that "[t]he allocation of [funding] credits is contingent on the number of units that basically you get credit on a per unit basis. The fewer the units, you get fewer credits, and there wouldn't be sufficient financing" (Nov. 28 tr at 43-44). Further, Mr. Sarinsky commented, while addressing the equity and irreparable harm components of granting a TRO, that "I think it would a real shame if, you know, this project for affordable housing was . . . ."[FN5] (Nov. 28 tr at 51.)
The court found it curious that the LPC was speaking to concerns unrelated to the aesthetical considerations of the COA. Rather, these concerns related to the potential harm that ICL, but not the LPC, would suffer were the TRO to be continued. In fact, Mrs. Bost Seaton, counsel for ICL, conceded that while ICL's mission to build low income housing was relevant to the [*12]court's consideration of the TRO, the court should not concern itself with what ICL was trying to achieve once the court got to the merits of granting the COA (tr at 34). The court noted that while ICL's arguments as to how financing would collapse were relevant to the court's consideration of whether to extend the TRO, they were irrelevant to the court's ultimate decision on the merits of the article 78 proceeding. Petitioners contended that if construction commenced all over the garden, it could never be revived; hence both sides argued irreparable harm.
The court thereupon found that the irreparable harm claimed by petitioners outweighed that claimed by ICL since once{**64 Misc 3d at 717} excavation work started in the garden and a foundation was laid and the building commenced, this work would never be dismantled and the mansion would no longer be defined by the garden. "To dismantle something after you have expended all of this money to build it would be even more" prejudicial to you than not building it. (Nov. 28 tr at 42, 52.) After balancing the equities and considering the status quo, the court narrowed the scope of the TRO to restrict any demolition or construction on the garden running north from the eastern side of the mansion facing St. Marks Ave. The court lifted the TRO to permit ICL to demolish the two existing buildings and commence building on the Brooklyn Ave. side of the mansion, as "that is enough guarantee [for ICL] to go back to its investors and start the process" (tr at 59). The court requested the parties to try to resolve the matter by reconfiguring the buildings so that a greater percentage of the garden could remain intact thus leaving the mansion as a freestanding entity.
At a second hearing held on December 21, 2017, the court ascertained that discussions about protecting more of the garden were not held as ICL's architects, engineers and financiers indicated that the project has to remain as is, and Landmarks' position was that their approval must stand. The court then queried why HPD had represented that there had to be about 75 units when the record indicated that the project was feasible as long as it contained 50 units. Counsel for ICL—Bost Seaton—replied that although HPD's minimum was 50 units, they preferred to have a higher amount to make the financing successful. Additionally, the placement of affordable housing at the site added further financial constraints since a certain amount of units were necessary to obtain rent payments and for the operations of on-site services for the tenants.
Bost Seaton then stated that another financial consideration was ICL's allocation of five million dollars to restoring the mansion. The court then inquired whether if ICL could spend less money on the mansion by scaling back its restoration, it could downscale the St. Marks Ave. building to include fewer units. Bost Seaton responded that it could be feasible had that proposal been originally presented to Landmarks. She added that hypothetically speaking, a number of different plans could have been presented to LPC that may or may not have been approved but that since LPC had approved a specific plan, any reconfiguration of the units would have to be assessed anew by the LPC (tr at 5). Mr. Sarinsky added that ICL could not independently{**64 Misc 3d at 718} take money away from the restoration of the mansion since the granting of the COA was based in part upon the restoration of the mansion.
The court again posited that Landmarks was not in the business of deciding whether it liked a certain City proposal, such as having affordable housing in Crown Heights, in determining whether to grant a COA pursuant to sections 25-301 and 25-307. Mr Sarinsky agreed, but noted that Landmarks was not an "anti-development organization." (Tr at 9.) Mr. Sarinsky added that its mission was to determine whether a proposed change within a historic district was appropriate and whether it comported with the nature and existence of the historic district. When the court again referred to the Commissioners' statements that they wanted to see the [*13]project done, Sarinsky replied that these were a few ad hoc comments in about 100 pages of transcript which laid out about 20 reasons, all of which dealt with aesthetics and historical design and deep setbacks, for LPC's approval of the project. (Tr at 9-10.)
The court then inquired again as to the significance of the garden which appeared to be unique and historical, and which defined the freestanding nature of the mansion. Sarinsky repeated that the garden was a very minor component of the historic designation report and was barely mentioned. When asked why the greenery surrounding the mansion and the new addition contained in ICL's revised configuration were not sufficient, Solomon responded: "The argument is the size of the garden . . . how the mansion breathes, that's obviously diminished based upon the fact that you have this really large structure that has been erected right in the middle of the garden." He continued that the addition of green space to the back of the building would have no effect on how the mansion is perceived from St. Marks Ave. He stated: "All you can see is a foreshortening of the garden" (tr at 24). Solomon added that petitioners were concerned about the effects of foreshortening both as to the garden and the mansion; the effect was intertwined because the "space itself creates this statue [sic] for the mansion. Instead, now you have this very large four and half story building right in the middle of the garden" (tr at 25).
The court then inquired as to why LPC did not really discuss the civic associations' concern about the uniqueness of the garden and how it framed the mansion into a freestanding entity (tr at 39). Sarinsky pointed to page 16 of the LPC March 22 hearing transcript where he believed that Commissioner{**64 Misc 3d at 719} Goldblum had discussed the impact of the garden. However, page 16 contained Mr. Woelfling's testimony about the small-scale residential context along St. Marks Ave. and the "notable feature which is a front yard setback. It's a very character defining element to the block." Sarinsky added that the LPC did take the community's vehement opposition into account when the LPC got rid of the entrance on St. Marks Ave. and found that the deep setback—61 feet from St. Marks Ave.—would essentially preserve the view of the mansion. (Tr at 48.)
Counsel for the City pointed to the thoroughness of the Commission's consideration of the proposal's encroachment into the garden area, stating that
"the record is full of actual deliberations by the Commissioners on this very question. Is it—can we set that more, does it appear in the building? Petitioners would have an historically free-standing building that must continue to be so. What the law requires is if there's an addition, it must be appropriate . . . And the Commission can look at this and see if it's back enough and it has the appearance from various views, that's an appropriate addition . . . [Mr. Goldblum] gives a very lengthy discussion about the setback and about whether the design of the buildings, that setback . . . if it's appropriate." (Dec. 21 tr at 52-53.)
He proffered that any focus on these stray comments by Commissioners that they wanted to see the project done constituted "cherry picking" and should be viewed in light of the entire record and transcript as whole. (Dec. 21 tr at 42-43.)
Finally, the court inquired how it was to assess the fact that the plan gave more green space on Brooklyn Ave. and less free space on St. Marks Ave. Ms. Caroline Harris, co-counsel for ICL, responded that the plan gave Brooklyn Ave. a sense of more transparency looking ahead and that the LPC is able to weigh these factors. The court then declared, "So basically what happens is that the Landmarks Commission is deciding that this mansion was never really free-standing because of the 1930s addition. So. If we give a little more free-standing illusion on one side and take it away on the other, it's still what it is." (Tr at 45.) Mr. Sarinsky agreed that was a good summary of the City's position.{**64 Misc 3d at 720}
Findings of Fact Concerning How the Addition Will Affect the Garden and Mansion
[*14]By supplemental affidavit dated December 8, 2017, Mr. Woelfling noted that although under section 25-304 (a) of the Administrative Code, Landmarks did not have authority to regulate or impose zoning limitations on the project—the building mass or its open spaces—ICL nevertheless considered the neighborhood's landmark designation, character and scale so that the project would "holistically" fit into the historic district. ICL self imposed a decision to only utilize 85% of the available zoning floor area so as to not overwhelm the mansion; utilizing all the permitted floor area could have made the building two stories higher on St. Marks Ave. He stated that scheme approved by LPC included "retaining and maximizing the open space to the east of the mansion and maintaining the 30 foot required rear yard for the building expansion."
Woelfling asserted that a comparison of the existing site plan to the LPC approved site plan revealed that the "formal garden" had only been decreased from 43% to 40% of the lot area or approximately a 700 square foot reduction. However, this comparison is inapt since Woelfling changed the definition of the "formal garden area" from the existing to the LPC approved site plans and failed to take account of how these rhetorical changes affected the ability to view the mansion in the round. (See exhibit A annexed to supp Woelfling aff.)
In the existing site plan, the "formal garden area" is depicted as the entire green portion of the lot adjoining the full east side of the mansion and continuing past the existing three story dorm for a total area of 10,051 square feet. The existing garden frames the entire eastern side of the mansion as a freestanding building and then extends back to the northern property line for a total length of approximately 150.5 feet. In the "Site Plan Approved by LPC" ICL reconfigures and redefines the formal garden into three separate areas: a "front garden," "side garden" and "rear garden," all of which total 9,637 square feet. The proposed "front garden" is 4,614 square feet and consists of a portion of what previously was the full formal garden on the east side of the building; its depth from St. Marks Ave. to the proposed new building is now 60 feet as opposed to 150 feet or a decrease of 60%. The area of the existing formal garden on the east side of the mansion would be reduced from 10,051 square feet to 4,614 square feet—a decrease of 54.1%. In fact, during oral arguments, petitioners asserted that the proposed building would consume "approximately{**64 Misc 3d at 721} two-thirds of the garden" (tr at 26) and ICL confirmed that it would be "about . . . sixty percent smaller" (tr at 29). The proposed "side garden," in measuring 2,634 square feet, would lie on the Brooklyn Ave. side of the mansion and the proposed "rear garden," measuring 2,119 square feet, would occupy the northern-most portion of the original formal garden and under the proposed plan would be blocked from view on St. Marks Ave. by the approved L-shaped addition.
Based upon its review of the testimony and exhibits, this court concludes that ICL's plans to create two new gardens—the side and rear gardens—are irrelevant to its determination. The side garden is visible from Brooklyn Ave. but out of view from nearly every vantage point on St. Marks Ave. since it commences halfway up Brooklyn Ave. from St. Marks Ave. Furthermore, it does not actually add more greenery to the plot since the original plan included a swath of greenery along Brooklyn Ave. from St. Marks Ave. to the end of the property line.[FN6] Similarly, the proposed building would totally obstruct any public view of the rear garden. (Id.) The court finds that the revised plan's rendering of the new building on St. Marks Ave. (exhibit J to City's answer) shows a greater continuity between the mansion and new building as the outside wrought iron fence along St. Marks Ave. is now continuous and allows the greenery to be viewed as an actual garden. However, the mansion still does not appear to be freestanding.
The "front garden" is the only one that impacts the now existing formal garden that effaces St. Marks Ave. and defines the mansion as a freestanding building. As configured in the revised plan that was approved by LPC, this garden is less than half of its original size. ICL's justification for reducing the formal garden, which apparently was adopted by LPC—that the garden was in a "disjointed state" and hardly mentioned in the designation report, and that ICL would restore the proposed smaller garden and landscape it to a more aesthetically pleasing design—is somewhat disingenuous as ICL did nothing to clean or repair or landscape the garden since its ownership of the lot.{**64 Misc 3d at 722}
Factual Findings as to Factors LPC Considered in Granting the COA
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" (Dec. 21 tr at 6). Petitioners also argued that LPC should not have considered the economic arguments of ICL (id.). Both counsels for the City replied that the random comments of the Chairpersons did not amount to a consideration of economic and fiscal constraints propounded by the ICL, and that the court and petitioners were "cherry picking" by focusing on those comments.
Mr. Woelfling admitted at the LPC hearing that ICL had some flexibility in site planning, but that if they pushed the building all the way back to what would be permitted by the zoning resolution, it would become a "forgotten end space," a space you could not use (tr at 28-29). In a subsequent affidavit, Woelfling stated that ICL had modified the plan to reduce the number of units from 73 to 67, which included 40 units of supportive housing and 26 units of affordable housing, although the actual proposal by LPC had a total count of 70 units accomplished through interior adjustments. He testified that the economies of scale to make supportive housing economically viable required a minimum of 50 units in a supportive housing residence (60% supportive housing units and 40% affordable housing units) but that "from a development and financing, and operations standpoint" a minimum scale of around 70 units was necessary. Finally, attorney Bost Seaton admitted that hypothetically speaking, a number of different plans could have been presented to LPC that could have salvaged more of the garden but that since LPC had approved a specific plan, any reconfiguration of the units would have to be assessed anew by the LPC (tr at 5).
To reiterate: Chairman Goldblum stated that this project was a "gauntlet thrown down to us to figure out how to make . . . this work because the mission . . . that this institution has is incredibly important. The need is very, very, very significant and I think we should do our utmost to try to make it work." (Tr at 54-55.) Chairwoman Srinivasan stated that "I think we as a commission should try and find ways to still allow them that program." (Tr at 62.) On April 22, 2016, Commissioner Goldblum commented that the project was{**64 Misc 3d at 723}
"an adaptive reuse of an [*15]individual house to do something very important and very unfortunately rare, which is to provide some very highly needed low-income housing. So I think our ability to work with them is very, very important and I think a positive outcome for this is as important for the city" (tr at 8).
Chair Srinivasan then stated that the proposal was about "striking a balance" between a historic district with a mansion that did not have an individual designation but was a "prominent building" against the fact that the ICL had occupied the mansion for several decades and they were providing affordable housing which had its "own realities" including the need to have a certain number of units to make it viable (tr at 10).
Mr. Sarinsky admitted to the court that LPC did not debate much about how much of the garden to preserve after acceding to ICL's claim that it needed to build 70 units to make the financing feasible, to which Mr. Sarinsky responded "no" (tr at 44). He was also well versed in the financing constraints facing ICL and stated: "The allocation of [funding] credits is contingent on the number of units that basically you get credit on a per unit basis. The fewer the units, you get fewer credits, and there wouldn't be sufficient financing." (Nov. 28 tr at 43-44.) Further, Mr. Sarinsky commented, while addressing the equity and irreparable harm components of granting a TRO, that "I think it would a real shame if, you know, this project for affordable housing was . . . ." (Nov. 28 tr at 51.)
The court finds that based upon the Commissioners' comments at the two LPC hearings, as well as arguments made before this court, that the Commissioners lauded the social and economic values espoused by the ICL in expanding its mission at the site by creating 70 additional units of housing for both low income and developmentally challenged individuals. LPC also acceded to ICL's position that the rehabilitation of the mansion and current extension was not feasible from a development and operating services standpoint, and that ICL had to build at least 70 units in order to obtain city and private financing, and that it had to build the addition as proposed, even though it would drastically cut into the garden. Although ICL's attorney admitted that there were many hypothetical plans that could have reduced the number of units and left more of the garden intact, LPC never pressed ICL on that subject. It is clear that LPC wanted the project to be done and that they would not interfere with the afore stated economic imperatives{**64 Misc 3d at 724} presented by ICL. The LPC therefore accepted the various tweaks to the project that ICL proposed after the March 22nd hearing and considered the aforementioned factors in issuing the COA.
Legal Analysis
In response to the loss of a number of its more significant buildings, including the original Pennsylvania Station, New York City adopted its first Landmarks Preservation Law in 1965. (See Administrative Code, former ch 8-A, § 205-1.0 et seq., now Administrative Code § 25-301, added by L 1985, ch 907, § 1.) The City acted from the conviction that its "standing . . . as a world-wide tourist center and world capital of business, culture and government would be threatened if legislation were not enacted to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character" (§ 205-1.0 [a]; Penn. Central Transp. Co. v NYC, 438 US 104, 109 [1978]; Matter of Teachers Ins. & Annuity Assn. of Am. v City of New York, 82 NY2d 35, 41 [1993]). Indeed, the City Council observed that
"many improvements . . . representing the finest architectural products of distinct periods in the [City's] history . . . have been uprooted, notwithstanding the feasibility of preserving and continuing the use of such improvements . . . and without adequate consideration of the irreplaceable loss to the people of the city of the aesthetic, cultural and historic values represented by such improvements . . . . In [*16]addition, distinct areas may be similarly uprooted or may have their distinctiveness destroyed, although the preservation thereof may be both feasible and desirable . . . ." (Administrative Code § 25-301[a]; see Board of Mgrs. of Soho Intl. Arts Condominium v City of New York, 2004 WL 1982520, 2004 US Dist LEXIS 17807 [SD NY, Sept. 8, 2004, No. 01 Civ 1226(DAB)].)
The LL declares that as a matter of public policy, the "protection, enhancement, perpetuation and use of improvements and landscape features of special character or special historical or aesthetic interest or value is a public necessity" (§ 25-301 [b]). Its purposes include the "foster[ing of] civic pride in the beauty and noble accomplishments of the past; . . . protect[ing] and enhanc[ing] the city's attractions to tourists and visitors . . . ; and promot[ing] the use of historic districts, [and] landmarks . . . for the education, pleasure and welfare of the people of the city" (§ 25-301 [b] [d], [e], [g]).
{**64 Misc 3d at 725}To achieve these ends, power is vested in the Commission to designate historic districts and their boundaries. (Administrative Code § 25-303 [a] [4]; NY City Charter § 3020 [6].) Once an area is designated, the LPC may regulate and protect any "improvement" which is defined as any "work of art or other object constituting a physical betterment of real property." (Administrative Code § 25-302 [i]; see Board of Mgrs. of Soho, 2004 WL 1982520, *8, 2004 US Dist LEXIS 17807, *28.) In determining whether to designate an area, the LPC must ascertain whether the area contains improvements which have "a special character or special historical or aesthetic interest or value," "represent one or more periods or styles of architecture typical of one or more eras" and "cause such area, by reason of such factors, to constitute a distinct section of the city." (Administrative Code § 25-302 [h] [1] [a], [b], [c].) No person may alter, demolish, construct or reconstruct any improvement in a historic district unless the Commission has issued a permit, which is generally granted through a certificate of appropriateness. (Administrative Code § 25-305; see Board of Mgrs. of Soho, 2004 WL 1982520, *8, 2004 US Dist LEXIS 17807, *28-29.) The importance of improvements in a historical district was aptly noted in Matter of Society for Ethical Culture in City of N.Y. v Spatt (68 AD2d 112, 117 [1st Dept 1979], affd 51 NY2d 449 [1980]), where the Court stated that if only those buildings of "extraordinary distinction" were preserved, "much of what is rare and precious in our architectural and historical heritage would soon disappear."
Landmarks Law § 25-307 is "triggered" whenever an applicant seeks to "construct, reconstruct, alter or demolish any improvement . . . in an historic district" (§ 25-307 [a]; see Matter of Save Gansevoort, LLC v City of New York, 2017 NY Slip Op 30563[U] [Sup Ct, NY County 2017]). When making a determination on an application to grant a COA to construct, reconstruct, alter or demolish an improvement in a historic district, the Commission shall 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" (§ 25-307 [b] [1]).
Section 25-307 (b) (2) sets forth nine factors that the LPC shall consider in granting a COA in a landmark district, and{**64 Misc 3d at 726} provides that "[i]n appraising such effects and relationship, the commission shall consider, in addition to any other pertinent matters, the factors of aesthetic, historical and architectural values and significance, architectural style, design, arrangement, texture, material and color." (Emphasis added; see Matter of Save Gansevoort, LLC v City of New York, 158 AD3d 483, 485 [1st Dept 2018]; Matter of Mattone v New York City Landmarks Preserv. Commn., 5 Misc 3d 1013[A], 2004 NY Slip Op 51367[U] [Sup Ct, NY County 2004].) Before issuing a COA the LPC must decide whether "the proposed work effectuates the purposes of the Landmarks Preservation Law." (Matter of 67 Vestry Tenants Assn. v Raab, 172 Misc 2d 214, 223 [Sup Ct, NY County 1997].) The decision to grant the COA is [*17]thus "limited to the appropriateness of the proposed building's exterior architectural features and narrowly circumscribed by the architectural, aesthetic, historical and other criteria specifically set forth in the Landmarks Preservation Law." (Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 306 AD2d 113, 114 [1st Dept 2003]; Matter of Save Gansevoort, LLC v City of New York, 2017 NY Slip Op 30563[U], *13 [2017].)
Furthermore, pursuant to section 25-307 (b) (3), all determinations of the LPC are constrained by the provisions of section 25-304. Subdivision (b) of section 25-304 permits the LPC to impose, with respect to the construction, reconstruction, alteration, demolition or use of such improvement or landscape feature, "regulations, limitations, determinations or conditions which are more restrictive" (emphasis added) than those prescribed or made by other applicable provisions of law. This section means that the LPC "has the authority to review the actions of another agency such as the Buildings Department and impose limitations on the findings of that agency if it would adversely affect a landmark." (City of New York v Seguine Bay Estates LLC, 54 Misc 3d 1204[A], 2016 NY Slip Op 51844[U], *6-7 [Sup Ct, Richmond County 2016].)
In an article 78 challenge to LPC's determination, as in all article 78 proceedings, the applicable standard of review is whether the administrative decision was made in violation of lawful procedure; affected by an error of law; or arbitrary and capricious or an abuse of discretion. (CPLR 7803 [3]; Matter of Committee to Save Beacon Theater v City of New York, 146 AD2d 397, 405 [1st Dept 1989]; Matter of Save Gansevoort, LLC.) A court can only ask whether the determination is{**64 Misc 3d at 727} rational and not an abuse of discretion, or a violation of the agency's legal duty. (Matter of Save Gansevoort, LLC, 2017 NY Slip Op 30563[U], *13.) An agency abuses its exercise of discretion if it lacks a rational basis in its administrative orders. (Save America's Clocks, Inc. v City of New York, 52 Misc 3d 282, 294 [Sup Ct, NY County 2016], affd 157 AD3d 133 [1st Dept 2017].) A court may overturn an administrative action where it is "taken without sound basis in reason" or "regard to the facts" (Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010], citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Mosley v New York City Landmarks Preserv. Commission, 2005 NY Slip Op 30504[U] [Sup Ct, NY County 2005]), but cannot overturn agency decisions because it believes that a better solution could be obtained. (Peconic Bay Broadcasting Corp. v Board of Appeals, Town of Southampton, 99 AD2d 773, 774 [2d Dept 1984]; see Matter of Save Gansevoort, LLC, 2017 NY Slip Op 30563[U], *13.)
An agency decision is arbitrary and capricious when the agency has relied upon factors which the legislature had not intended it to consider, entirely failed to consider an important aspect of the problem, "offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." (Kentucky Riverkeeper, Inc. v Rowlette, 714 F3d 402, 407 [6th Cir 2013], quoting National Assn. of Home Builders v Defenders of Wildlife, 551 US 644, 658 [2007]; see Ohio Coal Assn. v Perez, 192 F Supp 3d 882, 908 [D Ohio 2016]; Matter of Caspian Realty, Inc. v Zoning Board of Appeals of Town of Greenburgh, 68 AD3d 62, 70-71 [2d Dept 2009].)
Petitioners do not challenge, nor does this court have the authority to second-guess the LPC's determinations as to the aesthetic improvements or modifications to the exterior of the mansion, or the design of the new building, including the new glass corridor that connects the mansion to the new building or the reconfiguration of the entrance to the new building. Nor can the court substitute its opinion for that of LPC as to whether setting back the half floor after the fourth floor on St. Marks Ave. creates a better viewing of the mansion in the round than [*18]in the original plan.
Petitioners tacitly admit that they are not challenging the increased massing on Brooklyn Ave., but rather the addition of{**64 Misc 3d at 728} a 4½ story on the east side of the mansion fronting St. Marks Ave., which will eliminate approximately 60% of the garden effacing the eastern wall of the mansion fronting St. Marks Ave. and running north, and the elimination of the freestanding nature of the mansion. The City and ICL consistently argued that the garden was hardly mentioned in, and was not a factor in the designation of Crown Heights North as a historic district, implying that it should not be a significant factor in their consideration, especially because it was in a state of disrepair. Neither the City nor ICL papers address how the addition of the new building, some 60 feet from the St. Marks Ave. property line, would actually affect the viewing of the mansion. In fact, as set forth above, the LPC never really discussed the potential diminution of the garden during the hearings. Mr. Sarinsky admitted to the court that LPC did not debate how much of the garden to preserve after acceding to ICL's claim that it needed to build 70 units to make the financing feasible.
This court disagrees with the COA's statement that the "deep setback . . . will preserve the presence of the historic garden context of the house, the lot and the historic green space." Rather, it agrees with CHNA's argument that "the land . . . is actually a character defining feature of the mansion. Mansions are inherently different from other buildings in the district . . . as they are detached and the open spaces of the grounds are a significant feature of their context." The court also credits Hilbertz' statement that the garden was not merely a "plot" or an "afterthought," but rather was integral to the architectural design of the property and "literally defines the house as a free standing mansion, creating the offset needed for such: it is the space that defines the form." The court finds that the garden is integral to the architectural design of the property and defines its open and freestanding nature. Despite ICL's reduction of the building by one story and its setback of the top half floor, and its reconfiguration of the entrance to the new building, this court finds, based upon its examination of ICL's site plans, that the size and positioning of the new building decimates the depth of the garden and hence negates the freestanding nature of the mansion.
The court finds that it was arbitrary for LPC to downplay the importance of the original formal garden as a component which defined the freestanding nature of the mansion from the St. Marks Ave. vantage point and treat it as if it were some stepchild that just serendipitously arose. The fact that the LPC{**64 Misc 3d at 729} requested that ICL eliminate the second entrance from St. Marks Ave., and hence the pathway that cut through the continuous garden in front of the mansion, does not address the decrease of depth of the garden by 60%.
The LPC obviously was aware that the opposition to the plan focused on the fact that the reduction of the garden, as well as the massing of the proposed building fronting St. Marks Ave., would compromise the freestanding nature of the mansion. The Dattner Architects' April 12, 2016 submission to LPC opined that the entrance should remain on St. Marks Ave. due to the fact that "the Mansion's main entrance and orientation relates to St Marks Ave." While the Chairperson found that the addition effacing Brooklyn Ave. was justified because the 1930s additions somewhat "compromised the freestanding nature of the mansion" on Brooklyn Ave. and that the space was "already cluttered," the COA expanded this justification by generically finding that the mansion had "substantial additions present at the site for longer than the mansion was freestanding, therefore the proposed building is in keeping with this context." This language appears to find that the proposed addition on St. Marks Ave. is justified because the preexisting [*19]additions already compromised the mansion as a whole. In fact, during oral arguments, counsels for both ICL and the City argued that it was entirely proper for LPC to grant the COA because the greater amount of green space allocated to the Brooklyn Ave. side of the mansion in the plan compensated for the decrease of greenery or formal garden on the St. Marks side.
The court finds that it was arbitrary for the LPC to use the fact that existing additions were built in the back of the mansion to justify the elimination of the freestanding nature of the mansion on the St. Marks Ave. side. The existing site plan (exhibit A to Woelfling aff) reveals that the 1930s additions commenced at the midpoint of Brooklyn Ave. between St. Marks Ave. and the northern property line and that their eastern borders were flush with the eastern border of the mansion and did not protrude into the formal garden bordering the eastern side of the mansion. These additions therefore had no effect upon, and did not detract from viewing the mansion as a freestanding building from the St. Marks Ave. vantage point. In fact, the existing site plan shows that the formal garden running on the eastern side of the mansion from St. Marks Ave. to the northern property line, with no obstruction, framed the mansion and the 1930s addition as a freestanding building.{**64 Misc 3d at 730} By not analyzing how the viewing of the mansion from St. Marks Ave. would be affected by the 60% diminution of the garden caused by the proposed addition, the LPC failed to consider an "important aspect of the problem" before issuing the COA and hence acted in an arbitrary manner.
The LPC Considered Factors Outside of its Jurisdiction
Section 25-307 (b) (2) sets forth nine factors that the LPC shall consider in granting a COA in a landmark district, and provides that "[i]n appraising such effects and relationship, the commission shall consider, in addition to any other pertinent matters, the factors of aesthetic, historical and architectural values and significance, architectural style, design, arrangement, texture, material and color." (Emphasis added.) This court must therefore determine whether LPC acted within the scope of its powers as defined by the LL when it predetermined that the job must get done and considered the economic and fiscal realities governing the project in determining whether the granting of the COA would change, destroy or affect the exterior architectural features of the mansion and of the historical district.
In fact, after two dates of oral argument, the court asked the parties to submit further briefs on five issues, the fourth of which constitutes the crux of this case:
"It is clear that the LPC is mandated, in considering an application for a COA, to 'determine whether the proposed work will be appropriate for and consistent with the effectuation of the purposes of this chapter (Landmarks Law § 25-307 (a)),' i.e. 'to protect, enhance and perpetuate the use of improvements of special historical or aesthetic interest . . . (§ 25-301 (b)).' Given this mission, under what guidelines is the LPC permitted to consider the financial and good government arguments of a developer in support of its proposed project. Is it consistent with this statutory framework for the LPC to even offer an opinion that it wants to see the project done?"
The LPC submitted an affidavit from Sarah Carroll, the Executive Director of the LPC. She stated that Administrative Code § 25-313, which governs the LPC's public hearings, recognizes that the LPC is an expert agency and that the Commissioners are not "confined to consideration of the facts, views, testimony or evidence submitted at such hearing" (§ 25-313 {**64 Misc 3d at 731}[b]). With specific regard to the aforementioned question, she stated that while the LL does not prohibit the LPC from considering cost, "such considerations are secondary." She gave as an example the fact that for many years there was no domestic source for replacement brownstone so the Commissioner allowed a substitute material to be used to repair brownstone, the point being that [*20]the LPC determined that "it would be unreasonable to require homeowners to have to pay to import brownstone" from foreign countries.
A court "must defer to the agency's interpretation of its own regulations unless the text is unambiguous or the agency's interpretation is 'plainly erroneous or inconsistent with the regulation.' " (Intermodal Tech., Inc. v Peters, 549 F3d 1029, 1031 [6th Cir 2008].) In ascertaining what degree of deference the court should accord to an administrative agency's interpretation of a statute, the court must focus on "the extent to which the interpretation relies upon the special competence the agency is presumed to have developed in its administration of the statute." (Matter of Gruber [New York City Dept. of Personnel—Sweeney], 89 NY2d 225, 231 [1996]; Roberts v Tishman Speyer Props., L.P., 62 AD3d 71, 80 [1st Dept 2009].) Where the interpretation of a statute or its application involves specialized "knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom," the courts should defer to the administrative agency's interpretation unless irrational or unreasonable. (Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312 [2005]; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]; Matter of Raganella v New York City Civ. Serv. Commn., 66 AD3d 441, 445 [1st Dept 2009].) So too, deference is in order when the language used in the statute is special or technical and does not consist of common words of "clear import." (Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353, 360 [1994]; Matter of Raganella, 66 AD3d at 446.)
Because the LPC is a "body of historical and architectural experts," significant deference should be given to its decisions regarding landmarks. (Matter of Stahl York Ave. Co. LLC v City of New York, 76 AD3d 290, 295 [1st Dept 2010]; see Beacon, 146 AD2d at 405; Mosley v New York City Landmarks Preserv. Commn., 2005 NY Slip Op 30504[U] [Sup Ct, NY County 2005];Matter of 67 Vestry Tenants Assn. v Raab, 172 Misc 2d 214, 218{**64 Misc 3d at 732}[Sup Ct, NY County 1997].) Deference must be accorded to the LPC's expertise where the historic and/or aesthetic interests of the buildings are implicated. (Matter of Save Gansevoort, LLC, 158 AD3d at 486.) The LPC's interpretation of the Landmarks Law therefore must be accepted if not unreasonable. (Matter of Teachers Ins. & Annuity Assn. of Am. v City of New York, 82 NY2d at 42.)
Where an agency acts outside of its enabling legislation, or the "question is one of pure statutory analysis, dependent only on an accurate apprehension of legislative intent," there is little basis to rely upon the special competence or expertise of the agency. (Matter of Peyton v New York City Bd. of Stds. & Appeals, 166 AD3d 120,136 [1st Dept 2018], citing Kurcsics v Merchants Mut. Ins., 49 NY2d at 459; Matter of Teachers Ins. & Annuity Assn. of Am., 82 NY2d at 42.) In these occasions, a court is free to "ascertain the proper interpretation from the statutory language and intent and may undertake the function of statutory interpretation without any deference to the agency's determination." (Roberts v Tishman Speyer Props., 62 AD3d at 80; see Jackson v Bank of Am., N.A., 149 AD3d 815, 820 [2d Dept 2017].)
Ample precedent upholds the domain of the courts to ascertain the meaning of various provisions of the Landmarks Law, Zoning Resolution, or Rent Stabilization Law without deferring to the determinations of specialized agencies such as the LPC, Board of Standards and Appeals (BSA) or the Department of Housing and Community Renewal. (See Matter of Teachers Ins. & Annuity Assn. of Am., 82 NY2d at 42-44 [interpretation of phrase "customarily open or accessible to the public" contained in section 25-302 (a), the use and preservation of which LPC has authority to regulate, is a matter of pure legal interpretation that does not require judicial deference, [*21]including to the LPC's prior practice, since the statutory language is clear on its face]; Save America's Clocks, Inc. v City of New York, 52 Misc 3d 282, 300 [Sup Ct, NY County 2016] [interpretation of LL and, specifically, of the authority of the LPC to regulate public access to the clock tower and mechanical operation of clock is purely a question of law and not area within LPC's expertise]; see also Matter of Toys "R" Us v Silva, 89 NY2d 411 [1996] [determination of when a nonconforming use is abandoned under the zoning ordinance is a pure legal question that does not mandate deference to the BSA]; Peyton, 166 AD3d at 136 [resolution of a dispute concerning the 2011{**64 Misc 3d at 733} amendments to the Zoning Resolution's "open space" calculation, which always had been defined as being "accessible to and usable by all persons occupying a #dwelling unit#," was one of pure statutory reading and analysis and did not implicate BSA's knowledge and expertise re operational practices or evaluation of factual data (emphasis omitted)]; Matter of Warner v Town of Kent Zoning Bd. of Appeals, 144 AD3d 814, 819-820 [2d Dept 2016] [interpretation of Town Code enunciating a one year limit for completion of rebuilding of a destroyed nonconforming residence involves "a pure legal interpretation of statutory terms (with no) defer(ence) to the ZBA's interpretation"]; Raganella, 66 AD3d at 446 [no deference should be accorded to Civil Service Commission's (CSC) determination since language in NY City Charter regarding the powers and duties of the commissioner were words of clear import and did not depend "in the slightest on the knowledge and understanding of the practices unique to CSC"]; Roberts v Tishman Speyer Props., L.P., 62 AD3d at 80, 81 [interpretation of exception to high rent decontrol provisions contained in Rent Stabilization Law of 1969 (Administrative Code of City of NY) § 26-504.1 et seq. "requires no special competence, or understanding of underlying practices on the part of the DCHR" so as to require deference to the agency's interpretation].)
The court first notes that based upon the aforementioned precedent, the LPC is confined to considering the substantive nine factors listed in section 25-307 (b) in granting a COA and that section 25-313 is irrelevant as to the substantive factors that LPC must consider. The LPC's determination to grant a COA is "limited to the appropriateness of the proposed building's exterior architectural features and narrowly circumscribed by the architectural, aesthetic historical and other criteria specifically set forth in the Landmarks Preservation Law." (Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 306 AD2d 113, 114 [1st Dept 2003]; Matter of Save Gansevoort, LLC, 2017 NY Slip Op 30563[U], *13, affd 158 AD3d 483 [1st Dept 2018].) In fact, in Matter of Save Gansevoort, LLC, a case relied upon by respondents, the First Department noted that the LPC "shall" consider the nine factors listed in section 25-307 (b) (2) in "determining whether an application for a permit to construct, reconstruct, alter or demolish any structure in an historic district should be granted." (158 AD3d at 485 [emphasis added].) "In sum, this means the Commission must consider {**64 Misc 3d at 734}the effect of the proposed work and the relationship between the results of the work and the exterior architectural features of neighboring improvements in such district." (Id.; see Matter of Citineighbors Coalition of Historic Carnegie Hill, 306 AD2d at 114.)
On the other hand, section 25-313 deals solely with the procedural aspects of how and when a hearing must be conducted on an overall basis. (See Matter of Parkhouse v Stringer, 55 AD3d 1 [1st Dept 2008] [pursuant to section 25-313 (b) the LPC conducts public hearings wherein the petitioner, an advocate for a community group, frequently testifies].) At issue in Jacobs v New York City Landmarks Preserv. Commn. (59 Misc 3d 1223[A], 2017 NY Slip Op 51999[U], *2 [Sup Ct, NY County 2017]) was whether the LL required the LPC to hold another public hearing wherein the public could comment on the revised proposal before it granted Friends Seminary a COA. The court ruled that section 25-313 (b) leaves the determination as to whether the concerns [*22]raised are addressed adequately and satisfactorily to the LPC and not the public, citing to the very language set forth by Carroll: "[T]he commission, in determining any matter as to which any such hearing is held, shall not be confined to the facts, views . . . submitted at such hearing" (id.).
As such, it is this court's province, and not the LPC's, to determine whether section 25-307 (b) (2) permits the LPC to consider its desire to get the project done, the social merit of the project and the purported fiscal and economic constraints faced by ICL, in addition to the nine factors listed therein. To answer this question, the court must determine the meaning of the term "in addition to any other pertinent matters," within the context of section 25-307 (b) (2), which again states that "[i]n appraising such effects and relationship, the commission shall consider, in addition to any other pertinent matters, the factors of aesthetic, historical and architectural values and significance, architectural style, design, arrangement, texture, material and color" (emphasis added).
The primary consideration of the courts in interpreting a statute is to "ascertain and give effect to the intention of the Legislature." (Riley v County of Broome, 95 NY2d 455, 463 [2000]; Roberts v Tishman Speyer Props., 62 AD3d at 81, citing McKinney's Cons Laws of NY, Book 1, Statutes § 92 [a].) Therefore, even though the text or words of the statute itself are generally the best evidence of legislative intent, where{**64 Misc 3d at 735} adherence to the statute's "plain meaning" will produce an "unreasonable" result, "plainly at variance with the policy of the legislation as a whole," the courts will "follow[ ] that purpose rather than the literal words." (Matter of State of New York v Kerry K., 157 AD3d 172, 183 [2d Dept 2017], citing New York State Psychiatric Assn., Inc. v New York State Dept. of Health, 19 NY3d 17, 25-26 [2012].) "Although statutes will ordinarily be accorded their plain meaning, it is well settled that courts should construe them to avoid objectionable, unreasonable or absurd consequences" (Long v State of New York, 7 NY3d 269, 273 [2006]). Statutory provisions are to be construed so as to avoid conflict and preserve the intent of the legislature. (Orange County Legislature v Diana, 40 Misc 3d 278, 300-301 [Sup Ct, Orange County 2013]; Statutes §§ 97-98.)
Where the language is ambiguous or inconclusive, the courts may turn to other principles of statutory interpretation to discern the intent of the legislature. (Desrosiers v Perry Ellis Menswear, LLC, 30 NY3d 488, 494 [2017]; Matter of Shannon, 25 NY3d 345, 351 [2015].) The court may ascertain the proper interpretation from the legislative history. (Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 286 [2009]; see People v Ballman, 15 NY3d 68, 72 [2010]; Jackson v Bank of Am., N.A., 149 AD3d at 820.) Since statutory construction is a "holistic endeavor," a "provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme." (National Credit Union Admin. Bd. v Nomura Home Equity Loan, Inc., 727 F3d 1246, 1260 [10th Cir 2013].)
Another guiding principle is that "a statute [or ordinance] must be construed as a whole and that its various sections must be considered together and with reference to each other." (Matter of New York County Lawyers' Assn. v Bloomberg, 19 NY3d 712, 721 [2012]; People v Mobil Oil Corp., 48 NY2d 192, 199 [1979]; see East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 209 [2d Dept 2009]; Matter of Charlotte's Fancy Rest. v City of N.Y. Dept. of Consumer Affairs, 121 AD2d 969, 971 [1st Dept 1986].) When weighing competing interpretations, courts should be mindful of the legislative purpose and consider "whether a particular reading of the statute will produce 'absurdities' or 'senseless results' not intended by" the legislature. (In re Goodrich, 587 BR 829, 841 [D Vt 2018].) Thus, a statute should not only be read in the context of the entire statutory structure, but absurd results should be avoided. (S.K.I. Beer Corp. v Baltika Brewery, 443 F Supp 2d 313, 319 [ED NY 2006].)
[*23]{**64 Misc 3d at 736}These principles were applied in Save America's Clocks, Inc. v City of New York (52 Misc 3d 282 [Sup Ct, NY County 2016], affd 157 AD3d 133 [1st Dept 2017]) where the courts looked to the legislative history to construe a provision of the LL and ultimately determine that the LPC's granting of a COA was in violation of the law. LPC's decision to grant a COA would have permitted the building owner to make fundamental alterations to one of the few remaining 19th century non-electrified mechanical clock towers in the City, including disconnecting the clock from its historical mechanism, electrifying the clock, and eliminating public access.
The lower court first found that it was irrational and arbitrary for the LPC to issue a COA that would eliminate public access to the tower once the work was done since the defining characteristic of the clock tower suite at the time of its designation was that it was "customarily open or accessible to the public" (52 Misc 3d at 297). Furthermore, excluding public access contravened the City Council's raison d'être for enacting the LL in the first instance. (52 Misc 3d at 297-299, citing Landmarks Law § 25-301 [b].) Nor did the fact that the public did not presently have access to the clock tower suite, "whether . . . through the present owner's efforts or not," warrant a different result. (Id. at 298.) The lower court then found that the LPC's decision to permit conversion of the clock from a mechanical to electrical operation was based upon a mistake of law. (52 Misc 3d at 299-300.)
The First Department affirmed Supreme Court's order but found that the authority of the LPC under the LL to regulate public access to the clock tower and mechanical operation of the clock were both "purely a question of law and not an area within the LPC's expertise" (157 AD3d at 145, citing Matter of Teachers Ins. & Annuity Assn. of Am., 82 NY2d at 42 [interpretation of phrase "customarily open to the public" as contained in LL § 25-302 (m) was a question of law not requiring judicial deference]). Specifically, "whether the clock mechanism is encompassed by the statutory term 'architectural feature' (Landmarks Law § 25-302 [l]) . . . constitutes a question of law" for the court to decide. (157 AD3d at 145.)
The First Department found that LPC had the authority to regulate the clock mechanism for two reasons. First, such a result effectuates the statutory purposes of the LL, which was created "in response to the City's loss of a number of its more significant historic structures." (157 AD3d at 145.) The Court {**64 Misc 3d at 737}then cited to the purposes of the LL as contained in section 25-301 (b), including the "protection, enhancement and perpetuation of such improvements . . . which represent or reflect elements of the city's cultural . . . architectural history," and reiterated that in considering a COA, the LPC was required to "determine whether the proposed work would be appropriate for and consistent with the effectuation of the purposes of this chapter" (id. at 146, citing § 25-307 [a]). In determining an application for permission to alter or reconstruct an interior landmark, the LPC must consider the effects of the proposed work upon the protection of the architectural features which cause the interior landmark to possess a special character or historical or aesthetic interest or value (§ 25-307 [e]). The interior designation report noted that the clock and clock tower "are a rarity in New York City . . . . The clock is one of the few remaining in New York which has not been electrified" (id.). The clock tower housed "the largest of the few purely mechanical tower clocks of its kind" in New York City and the only other clock in the world with a similar mechanism was Big Ben in London. (157 AD3d at 136.) The Court thus concluded that the "clock's mechanism represents an element of the city's cultural and economic history and contributes to the building's historical value, and maintaining it would promote pride in the 'accomplishments of the past' and advance the statutory purposes." (157 AD3d at 146.)
Furthermore, the LL defines the term "interior architectural feature" to include various [*24]components, "including, but not limited to . . . the type and style of all . . . fixtures" (LL § 25-302 [l]). Since the LL permits the LPC to "apply or impose" with respect to the construction, reconstruction, alteration, etc., of a designated landmark limitations or conditions which "are more restrictive" than those proscribed or made by other provisions of the law (§ 25-304 [b]), the LPC clearly has the authority to require the owner to run the clock by its functioning mechanism and not electricity. In fact, the Court noted that "there would be little point in designating the machinery as a landmark without an expectation that it would continue to operate for so long as it can." (157 AD3d at 147.)
The First Department commented that the Commissioners had erroneously relied upon the opinion of its counsel, but that even if the Commissioners were relying on their own ideas of what constitutes "interior architectural features" under the LL, "there can hardly be a more obvious instance of statutory interpretation,{**64 Misc 3d at 738} on which we owe no duty of deference to the LPC." (Id. at 148.) Finally, and of particular pertinence to the instant matter, the First Department noted that
"[o]bjects once thought of as ordinary become increasingly rare . . . Their physical existence and functioning take on new meaning as connections to our history. This majestic clock, and its historically significant functioning mechanism, is a perfect example of the very reason the [LL] exists, because the 'protection, . . . perpetuation and use of [objects] of special character or special historical or aesthetic interest or value is a public necessity' (Landmarks Law § 25-301 [b]) [and] [t]he actions of the LPC . . . are contrary to that purpose." (Id. at 148.)
The uniqueness and pedigree of the mechanical clock in the bell tower is eerily similar to the uniqueness of the Dean Sage mansion. The amorphous term "in addition to any other pertinent matters" must be analyzed within the context of the purpose and intent of the LL, which was created to protect, enhance and perpetuate unique historic structures, and the dictate in section 25-307 that in considering an application for a COA, the LPC must determine whether the proposed work would be "appropriate for and consistent with the effectuation of the purposes of this chapter." It would be absurd and contrary to the raison d'être of the LL to give the LPC carte blanche to consider, as pertinent to its determinations, factors that did not enhance, protect and perpetuate the improvements which were integral to the creation of the historic district. LPC's considerations of the social desirability of building more housing for the developmentally challenged and or the economic and fiscal constraints of developers of such projects fall outside the parameters of the purpose and intent of the LL.
The designation report for the CHNHD recognized the uniqueness and historical importance of the Dean Sage mansion as one of the few remaining Victorian mansions in the City. The summary of the report indicates that the district contains "some of Brooklyn's finest and most . . . freestanding residences . . . dating from the middle of the nineteenth century" (report at 4). It specifically notes that while most of the freestanding villas were "swept away" by development, a few remained within the district including the 1870 Dean Sage mansion—"a rare High Victorian Gothic residence" designed by Russell Sturgis, a master of that style. (Id.) The report{**64 Misc 3d at 739} describes the Dean Sage residence as "one of the oldest and most important nineteenth-century mansions remaining in the District," a "rare example" of Sturgis' houses remaining in NYC (at 263) and "a well preserved reminder of northwestern Crown Heights' suburban years" (at 15). Finally, the First Department's conclusion that the "clock's mechanism represents an element of the city's cultural and economic history . . . and maintaining it would promote pride in the 'accomplishments of the past' and advance the statutory purposes" (157 AD3d at 146) applies with equal force to maintaining the mansion as a freestanding building.
[*25]Another tenet of statutory construction considered by the First Department—that all portions of the statute be read together—mandates that this court, as the Court did in Save America's Clocks, look to section 25-304 (b). This provision permits the LPC to "apply or impose" with respect to the construction, reconstruction, alteration, etc., of a designated landmark limitations or conditions which "are more restrictive" than those proscribed or made by other provisions of the law. Obviously the extraneous factors considered by the LPC are not more restrictive but more expansive.
Other canons of statutory construction also mandate that the term "other pertinent matters" be read in a narrow restrictive manner. First, words, phrases and sentences of a section "should be interpreted with reference to the scheme of the entire section" and the meaning of an undefined word depends on the meaning of the whole act. (People v Odum, 31 NY3d 344, 351 [2018] ["such"]; Matter of Charlotte's Fancy Rest., 121 AD2d at 970 ["incidental"], citing Statutes § 97; Riccelli Enters., Inc. v New York State Dept. of Envtl. Conservation., 30 Misc 3d 573, 581-582 [Sup Ct, Onondaga County 2010] [even if there was ambiguity in the phrase "on behalf of" the resolution must be in favor of a narrow interpretation, since "the words used in a statute are construed in connection with, and their meaning is ascertained with reference to, the words and phrases with which they are associated"].)
General words of a statute do not overrule or render meaningless the particular words of a statute. (Statutes § 238; see Matter of Hudson Val. Dist. Council of Carpenters [State of N.Y., Dept. of Correctional Servs.], 152 AD2d 105, 108 [3d Dept 1989] [word "other" is given its common meaning within the meaning of the statute].) Furthermore, under the rule of noscitur a sociis (Statutes § 239 [a]), the meaning of an {**64 Misc 3d at 740}amorphous word or phrase may be ascertained by a "consideration of the company in which it is found and the meaning of the words which are associated with it." (Popkin v Security Mut. Ins. Co. of N.Y., 48 AD2d 46, 48 [1st Dept 1975] [where comprehensive words in a contract are followed by an enumeration of specific things, under the rule of ejusdem generis the things coming within the comprehensive words will be limited to those of a like nature to those enumerated].) Under the doctrine of noscitur a sociis "a word is known by the company it keeps" and the court relies upon this rule to "avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving 'unintended breadth to the Acts of Congress.' " (Gustafson v Alloyd Co., 513 US 561, 575 [1995] [the word "communication" must be interpreted narrowly as it is but one word in a list]; Rothstein v American Intl. Group, Inc., 837 F3d 195, 210 [2d Cir 2016] [The word "affiliate" must be viewed in the full context of the exclusion provision. The term "affiliate" directly follows the terms "parent" and "subsidiary," and directly precedes the terms "officer" and "director"].) An ancillary to this doctrine is "[t]hat several items in a list shar[ing] an attribute counsels in favor of interpreting the other items as possessing that attribute as well." (United States v Pena, 161 F Supp 3d 268, 279 [SD NY 2016]; Board of Mgrs. of 184 Thompson St. Condominium v 184 Thompson St. Owner LLC, 2018 NY Slip Op 32169[U], *9-10 [Sup Ct, NY County 2018] [under these two doctrines the court looks to the full enumerated list of replacements under the statute to determine whether the legislature intended the replacement of 156 sliding glass doors to be considered as "window systems"].)
In light of the above, the term "in addition to any other pertinent matters" must be interpreted within the context of the specific factors of aesthetic, historical and architectural values and significance, architectural style, design, arrangement, texture, material and color (§ 25-307 [b] [2]). It also must be interpreted within the context of the mandate that the LPC consider[*26]"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" (§ 25-307 [b] [1] [a]). While it is not the function of this court to give a precise definition of this term at this juncture, it is clear that the term does not give the LPC carte blanche to consider any matter that might be urged upon it by a developer or the public and it certainly does not authorize the LPC to consider the{**64 Misc 3d at 741} financial or economic constraints faced by an applicant and or the social desirability of the project that is the subject of the COA.
Based upon the foregoing, this court hereby finds the LPC determination granting a COA was arbitrary and capricious and based upon an error of law. The petition is therefore granted and the COA is vacated. The case is remanded to the LPC for a new hearing in light of this court's rulings.