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United States District Court, S.D. New York

September 8, 2004.


The opinion of the court was delivered by: DEBORAH BATTS, District Judge


Before the Court are Plaintiff Board of Managers of Soho International Arts Condominium's (the "Board") and Defendants City of New York (the "City"), the New York City Landmarks Preservation Commission's (the "Commission") (collectively the "City Defendants") Cross Motions for Summary Judgment to determine whether the Commission violated Plaintiff's rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution, the New York State Constitution, and New York state law when it prevented the permanent removal of a prominent work of art (the "Work") installed on the exterior of Plaintiff's building located at 599 Broadway, New York, New York ("599 Broadway" or the "Building"). The Municipal Arts Society ("MAS") has also filed a Motion to File a Brief of Amicus Curiae; no party has filed any papers concerning the MAS' Motion. The Court accordingly GRANTS the Motion and will review the MAS' briefing papers.

  For the reasons that follow, Plaintiff's Motion is DENIED in its entirety and City Defendants' Motion is GRANTED in part and DENIED in part. I. FACTUAL BACKGROUND

  The Court presumes familiarity with its Opinion of June 17, 2003, which granted in part and denied in part both Plaintiff Board's and Defendant Forrest Myers' ("Myers") Cross Motions for Summary Judgment. Board of Managers of Soho International Arts Condominium v. City of New York, 01 Civ. 1226 (DAB), 2003 WL 21403333 (S.D.N.Y. Jun. 17, 2003) (hereinafter "Board I"), motion for reconsideration denied, 2003 WL 21767653 (S.D.N.Y. Jul. 31, 2003) (hereinafter "Board II").

  A. Origin of the Wall

  599 Broadway ("599 Broadway" or the "Building") is a twelve-story loft structure, built in 1917 and organized into a condominium in 1983.*fn1 (Pl. 56.1 Stmt. ¶¶ 1, 5, 43; City Defs. 56.1 Stmt. ¶¶ 1-3.) An eight-story building abutted 599 Broadway on its northern side until it was torn down in the 1940s when the City widened Houston Street by eminent domain. (Pl. 56.1 Stmt. ¶ 6; City Defs. 56.1 Stmt. ¶ 4.) The condemnation and clearance of that building left only its southernmost wall intact, and this remnant was anchored to 599 Broadway by a series of braces to ensure structural support. (Pl. 56.1 Stmt. ¶ 8; City Defs. 56.1 Stmt. ¶ 4.)

  This anchor system formed a rectangular grid pattern of seven rows with each row containing six braces. These forty-two braces were, in turn, affixed to 599 Broadway's exterior by rods which penetrated the Building's northern wall and were embedded in its floor slabs. (Pl. 56.1 Stmt. ¶ 8; City Defs. 56.1 Stmt. ¶ 4.)

  In 1972, the then-owner of the Building Charles Tanenbaum ("Tanenbaum") consented to the installation of the Work on 599 Broadway's northernmost wall under the auspices of City Walls, Inc. ("City Walls"), a non-profit organization. (Pl. 56.1 Stmt. ¶¶ 9-11; City Defs. 56.1 Stmt. ¶ 5.) The Work was created by Myers, who utilized the braces on 599 Broadway and created a three-dimensional work by bolting four-foot aluminum bars perpendicularly to each of the forty-two steel braces on 599 Broadway's northern wall. (Pl. 56.1 Stmt. ¶ 11; City Defs. 56.1 Stmt. ¶ 7.) The necessary government permits were obtained by Tanenbaum and City Walls, and the Work was installed. (Pl. 56.1 Stmt. ¶¶ 9-20; City Defs. Reply to Pl. 56.1 Stmt. ¶¶ 9-20.)

  Affidavits from both sides state that the Work cost $10,000 to fabricate and install. (Topping Aff. ¶ 25; Silberman Aff. ¶ 18.) The Board has paid the bulk of the maintenance costs of the Work and 599 Broadway's exterior wall, although the Public Art Fund ("PAF") has contributed over the years a modest sum for the Work's upkeep. (Topping Aff. ¶ 6; Silberman Aff. ¶ 36.)

  There are no documents in the record that indicate who owned the Work at the time of the installation. Neither party has submitted any evidence regarding whether any change in ownership has occurred since the Work's installation in 1973. Finally, as noted in Board I, "there is no documentation between [City Walls and Myers] addressing ownership of or title to the Work," and both Myers and Plaintiff Board "vigorously dispute" ownership and title. Board I at *4, *20 n. 24.*fn2 City Walls and its successor PAF have never claimed a proprietary interest although they may have contributed significantly towards the Work's original creation and installation. Board I at *4 (noting that Plaintiff and Defendant Myers both acknowledged that the "cost of the project . . . was funded by City walls with grants from Chase Manhattan Bank, the National Endowment for the Arts, and Tanenbaum").

  B. Designation of Landmark District

  Pursuant to the Landmark Preservation Law ("Landmarks Law"), N.Y.C. Code § 25-303, the Commission designated the SoHo-Cast Iron Historic District (the "District") on August 14, 1973 and designated its boundaries as Canal Street, Broadway, Crosby Street, and West Broadway.*fn3 (Pl. Exh. 32; Pl. 56.1 Stmt. ¶ 23; City Defs. 56.1 Stmt. ¶ 11.) The District encompasses twenty-six city blocks and about 500 buildings. (Pl. Exh. 32 at 1; City Defs. 56.1 Stmt. ¶ 11.) In designating the District, the Commission composed a SOHO-CAST IRON HISTORIC DISTRICT DESIGNATION REPORT ("Designation Report") in which it chronicled the buildings in the District and their historical and aesthetic importance and also detailed the rationales behind the creation of the District, including the fact that the District has a "collection of well preserved cast-iron structures, now unrivalled in the world." (Pl. Exh. 32 at 1.) The Report also remarked that the District "is fast becoming one of the most important creative centers of contemporary art in the nation," and credited this artistic revitalization as key to "the preservation of a unique concentration of structures of great historic significance." (Id. at 8.)

  The Designation Report did not mention the Work explicitly; it referred to the actual Building only once, observing:

#599-601 (through to Mercer)
(Southwest corner W. Houston)
Completed: 9/5/1917
Architect: J. Odell Whitenach
Original Owner: Frederick Ayer
Original Function: Store and lofts
12 stories; 6 bays (outer bays are double windows)
(Id. at 50.)
The Report did not reference the Work because Myers had not yet completed it at the time of the District's designation. (Pl. 56.1 Stmt. ¶ 31; City Defs. 56.1 Stmt. ¶ 11.) Tanenbaum wrote to the Commission shortly after the District was designated to "raise a question with regard to the completion of a City Walls project now in progress." (Pl. Exh. 14.) Detailing the approvals the Work had already received from various city agencies, Tanenbaum indicated that the Work was currently in the process of installation, that he hoped "no formal proceedings will be necessary before [the] Commission," and that any advice was welcomed "as to what, if any, further steps" were required. (Id.) On September 19, 1973, the Commission responded to Tanenbaum, indicating that the Commission did not demand any further action. (Pl. Exh. 15 (citing section 207.20.0).)*fn4

  C. Initial Efforts to Repair and/or Remove the Work

  On February 2, 1981, the Building's then-owner, 599 Associates, applied to the Commission for permission to make repairs to 599 Broadway's northern wall. (Pl. 56.1 Stmt. ¶ 46; City Defs. 56.1 Stmt. ¶ 14.) On March 11, 1981, the Commission granted its permission for the owner to undertake the necessary repair work (Pl. Exh. 21), which was duly performed. (Pl. 56.1 Stmt. ¶ 47; City Defs. 56.1 Stmt. ¶ 15.)

  In 1983 and 1984, the Commission charged Plaintiff with violations of the Landmarks Law, because of its display of an unauthorized sign on the Building's wall. (City Record at 47-49;*fn5 City Defs. 56.1 stmt. ¶ 17.) The sign "partially obscure[d] the sculpture designed by Forrest Meyers [sic]," and the Board's application to continue the sign's display was denied by the Commission on September 19, 1984. (City Record at 49.)

  By 1987, the northern wall was again in a state of disrepair. The Building's managing agent applied to the Commission for permission to apply waterproofing to the northern wall and to remove the Work on August 28, 1987 because the wall constituted "an unsafe condition." (Pl. Exh. 23.) The Commission responded by letter to the Building's request on September 14, 1987, in which it noted "that removal of the sculpture will require a public hearing because it is a highly visible addition to a designated building within the Soho — Cast Iron Historic District." (Pl. Exh. 24.) The letter recommended that the Building withdraw its request to remove the Work and instead to seek permission to repair the wall; the application for removal of the Work could then be submitted separately, thus obviating the need for a public hearing for urgent repairs. (Id.) The managing agent subsequently withdrew his request to remove the mural in order to repair the wall. (Pl. 56.1 Stmt. ¶ 49; City Defs. 56.1 Stmt. ¶ 18.) On March 22, 1988, the Commission issued a permit which outlined the authorized repair work, including the repair of the wall's masonry and waterproofing of both the Work and the wall. (Pl. Exh. 26.) There is no record that the Board submitted a application for removal for a decade. In 1997, the Board again contemplated the repair of the wall and the removal of the work.*fn6 Plaintiff sought the Commission's permission on an emergency basis to remove the Work from the Building's northern wall on October 20, 1997. (Pl. Exh. 27; Pl. 56.1 Stmt. ¶ 51; City Defs. 56.1 Stmt. ¶ 20.)

  The Commission approved the "interim removal of unstable steel braces, along with the attached projecting sculpture," and the easternmost row of braces was removed. (Pl. Exh. 28.) The Commission found that "the work would eliminate a potentially unstable condition, and that the work would allow for an inspection of the condition of the braces, structural attachments, and the underlying masonry, and enable the applicant to develop a proposal to address structural deterioration and future reinstallation of the sculpture, if feasible." (Id.) The permit did not indicate that reinstallation of the braces was required nor did it give a time frame for such an action; however, it did explicitly provide that "any future proposal . . . to reinstall the sculpture, may be approved . . . [and any] proposal to permanently eliminate portions, or the entirety, of the braces, sculpture, or the underling masonry, will be reviewed at a public Hearing for a Certificate of Appropriateness." (Id.)

  The removal of the easternmost braces allowed for inspection of the extent of the deterioration of the wall and the bracing system. The masonry was in poor condition as were the channel irons and braces located both on the interior and exterior of the northern wall. (Pl. 56.1 Stmt. ¶¶ 53-55; City Defs. 56.1 Stmt. ¶¶ 31-32.) The Board retained Rand Engineering ("Rand") to investigate and recommend ways to repair the wall. In its Engineering Report ("Engineering Report"), Rand recommended that the bracing structure be internalized,*fn7 thus eliminating the structural elements upon which the Work was installed. (Pl. Exh. 29 at 9.) The Engineering Report further advised that were the Work to be reinstalled, a replica made of lightweight material and affixed in different locations than the original would avoid creating any structural problems. (Id.) D. The Commission's Denial of the Certificate of Appropriateness

  The Board then decided in 1997 that it would seek approval to remove the Work permanently. The Commission treated the application to remove the Work permanently as an application for a certificate of appropriateness ("COA") under the Landmarks Law. (pl. 56.1 Stmt. ¶ 67; City Defs. 56.1 Stmt. ¶ 21.)

  During the Commission's review of the Board's COA to remove the Work, Plaintiff submitted a proposal to keep the Work in place while installing an advertisement on the northern wall just above the Work. (City Record at 302-03.) However, because the Board felt that the proposal would not be granted, Plaintiff withdrew the proposal at a May 16, 2000 hearing before the Commission, and has not filed another advertising proposal. (Pl. Response to City Defs. 56.1 Stmt. ¶ 8; City Record at 1115, 1163.)

  The Commission held public hearings on the Board's application on January 27, 1998, June 29, 1999, May 16, 2000, and July 11, 2000. (Id. at 1000-1227.) At these hearings, Plaintiff, its lawyers, and Rand Engineering testified in support of the Board's application and also sent to the Commission various written submissions. (Id. at 1005-20; 1066-1074; 1078-88; 1115-44; 1170-71; 1198-1226.) The Commission also heard from the Myers and his wife (Id. at 1025-35; 1038-40; 1089-97; 1147-1156; 1189-1194), as well as an organized cadre of witnesses of art gallery owners, artists, art critics, celebrities and elected officials, who praised the Work as influential and important. (Id., passim.)*fn8 There was only one dissenting opinion, that of Louis Torres, an art critic, who told the Commission at length that under no circumstances was the Work to be considered a piece of art. (Id. at 1057-59.)

  On October 18, 2000, the Commission voted unanimously to deny Plaintiff's application for a COA to remove the Work. (Id. at 1228-1268.) Its formal written denial on November 13, 2000 articulated the Commission's findings:

that the sculpture, conceived of in the early 1970s and installed in 1973, is a highly acclaimed work of art . . .; that the sculpture is by Forrest Myers, an important American artist; that Mr. Myers lived and worked in Soho during the 1960s and 1970s and was one of the pioneering artists who moved into Soho, that these artists adaptively reused the cast iron buildings and transformed the area into a nationally and internationally acclaimed center of contemporary and avant-garde art, and that Mr. Myers conceived of and installed the sculpture during this important time in the district's and city's history; that the sculpture was conceived of and installed contemporaneously with the designation of the district, that from the time it was installed in 1973, the sculpture became a symbol of Soho due to its presence at the prominent intersection of Broadway and Houston Street, and that during the intervening 28 years it has come to be known and experienced as the "gateway" to Soho; that the installation of the sculpture, through attachment to the pre-existing tie rods and channel irons that brace the northern façade has not damaged original or historic material; . . . that the sculpture can be reinstalled and maintained on the refurbished wall without causing damage to the wall or building; that the placement of the sculpture and its scale and color do not detract from, and are harmonious with, the significant architectural features of the building and the historic district; that the sculpture is evocative and representative of a significant era in the district's and city's history, when the cast iron buildings were being adaptively reused by artists and the area was being transformed into a world class center for contemporary and avant-garde art, and which era and transformation contributed significantly to the preservation of the cast iron buildings; and therefore, for all the above reasons, the sculpture contributes to the special architectural and historic character of the historic district and that its permanent removal will adversely affect the district's special sense of place. Based on these findings, the Commission determined the [removal of the Work] to be inappropriate to the building and to the Soho-Cast Iron History District, and voted not to approve the application.
(Pl. Exh. 30.)

  Shortly thereafter, Plaintiff brought suit in this Court.

  During the pendency of this action, Plaintiff requested a Certificate of No Effect ("CNE") from the Commission to effectuate repairs on the northern wall of the Building. In early 2001, the Board submitted a revised application in accordance with the Commission's requirements, in which it proposed to remove the Work, repair 599 Broadway's northern wall, fabricate lightweight replicas of the Work, and reinstall the Work. (Pl. 56.1 Stmt. ¶ 76; City Record at 1694-1701.)

  The Commission granted a CNE on August 27, 2002 which permitted the proposed repair work to commence. It specifically approved "removing existing steel channels and the attached projecting aluminum sculpture; cutting back existing through-wall bolts and filling the voids with grout; removing and replacing deteriorated brick . . .; installing new aluminum channels and projecting aluminum sculpture, to match the existing [Work], anchored to the existing floor structure of 599 Broadway with new threaded stainless steel rods." (Pl. Exh. 31.) The Work would be affixed to the wall in slightly different locations than the original Work to protect the wall's structural integrity. (Pl. 56.1 Stmt. ¶ 80; City Defs. 56.1 Stmt. ¶ 36.)

  E. Other Buildings and Attempts at Removal of Art in SoHo

  The Work was not the only project that City Walls undertook in the 1960s and 1970s. In the SoHo-Cast Iron Historic District alone, City Walls oversaw the creation of at least three other prominently displayed artworks: (1) a wall painting on 600 Broadway ("600 Broadway") by artist Mel Pekarsky ("Pekarsky"), (2) a wall painting on 169 Mercer Street ("169 Mercer") by artist Dorothy Gillespie ("Gillespie"), and (3) a wall painting on 475 West Broadway ("475 West Broadway") by artist Jason Crum ("Crum"). (Pl. 56.1 Stmt. ¶ 66(a); City Defs. 56.1 Stmt. ¶¶ 51-59.) Like the Work, these three artworks were displayed on their respective buildings' exterior walls.

  The painting on 600 Broadway was completed before the designation of the SoHo-Cast Iron Historic District. In 1992 and 1996, the Commission approved two COAs which permitted the installation of large-scale advertisements on the exterior wall where the Pekarsky painting had stood. (Pl. Exhs. 35-37; City Defs. 56.1 Stmt. ¶ 52.) The owners of 600 Broadway never petitioned or received the approval of the Commission to remove the two-dimensional painting. Finally, none of the Commission's approvals of COAs in 1992 or 1996 mention whether Pekarsky's painting still existed. It's fate, and the Commission's role, if any, in it, are unclear. (Pl. Exhs. 35-37.)

  Gillespie's painting on 169 Mercer was created two years after the designation of the District, and the Commission explicitly approved of the artwork's display on the eastern part of the northern wall fronting Houston Street. (Pl. Exh. 38; Pl. 56.1 Stmt. ¶ 66(b); City Defs. 56.1 Stmt. ¶ 52.) Both parties agree that the two-dimensional painting soon deteriorated to the point where it was no longer visible. (Pl. 56.1 Stmt. ¶ 66(b); City Defs. 56.1 Stmt. ¶ 55.) In 1981, the Commission permitted the owners of the building to install new windows in the same place as Gillespie's work; there is no mention, however, of the art in the permit. (Pl. Exh. 40.) Fifteen years later, the Commission approved the installation of a large-scale advertisement where the painting had been, and Gillespie herself had given permission for the removal of her work and the installation of the advertisement. (Pl. Exh. 41; City Record at 228; City Defs. 56.1 Stmt. ¶ 55.) Again, the Commission's approval did not explicitly mention Gillespie's work. (Id.)

  475 West Broadway abutted a vacant lot in the 1960s, during which its owner consented to a two-dimensional wall painting to be painted by Crum. In the early 1980s, the owner of the vacant lot constructed a two-story building on his property. As a result, Crum's painting was significantly obscured, perhaps as much as half. (City Defs. 56.1 Stmt. ¶ 57.) In 1998 and 2000, the Commission approved the building owner's applications to install advertisements on the exterior wall where the Crum painting had been. (Pl. 56.1 Stmt. ¶ 66(c); City Defs. 56.1 Stmt. ¶¶ 58, 59.)

  All three works of art were two-dimensional paintings that did not have any three-dimensional components nor were they incorporated into any special structural support system in their respective buildings (apart from being painted on the walls themselves). (Pl. 56.1 Stmt. ¶ 66; City Defs. 56.1 Stmt. 51-59.)

  F. Procedural History of the Case

  After the Commission's denial of the COA in the fall of 2000, Plaintiff filed this suit. The Board's Complaint contains six claims against the City, the Commission, and Myers. The claims against the City Defendants are: (1) a § 1983 claim alleging violations of the Plaintiff's First, Fifth, and Fourteenth Amendment rights, (2) a claim under New York law for the Commission's purported violations of the New York State Constitution which are analogous to the first cause of action, and (3) a claim alleging that the Commission exceeded its statutory jurisdiction under New York law pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR"). (Compl. ¶¶ 62-75.) The sixth claim, which alleged that the Commission had improperly delegated power to a private citizen in violation of New York law was dismissed by a Stipulation of Dismissal, so ordered by this Court on July 24, 2003. (Stip., Jul. 24, 2003.)

  As directed by the Court, Plaintiff and Defendant Myers filed cross motions for summary judgment, both of which the Court granted in part and denied in part in its June 17, 2003 Opinion.*fn9 Plaintiff and City Defendants now cross move for summary judgment on the first three claims in the Complaint.


  A. Summary Judgment Standard

  A district court should grant summary judgment when there is "no genuine issue as to any material fact," and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c); see also Hermes Int'l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107 (2d Cir. 2000). Genuine issues of fact cannot be created by mere conclusory allegations; summary judgment is appropriate only when, "after drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party." Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (citing Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

  In assessing when summary judgment should be granted, "there must be more than a `scintilla of evidence' in the nonmovant's favor; there must be evidence upon which a fact-finder could reasonably find for the non-movant." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A court must always "resolv[e] ambiguities and draw [] reasonable inferences against the moving party," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986); however, the non-movant may not rely upon "mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Id. at 12. Instead, when the moving party has documented particular facts in the record, "the opposing party must, `set forth specific facts showing that there is a genuine issue for trial.'" Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (quoting Fed.R. Civ. P. 56(e)). Establishing such facts requires going beyond the allegations of the pleadings, as the moment has arrived "`to put up or shut up.'" Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted). Unsupported allegations in the pleadings thus cannot create a material issue of fact. Id.

  When a party fails to oppose a motion for summary judgment on a particular claim, "the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)). "Moreover, in determining whether the moving party has met this burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion." Id. at 244 (citing Giannullo v. City of New York, 322 F.3d 139, 143 n. 5 (2d Cir. 2003)).

  Finally, for cases in which both sides move for summary judgment, a district court need not grant judgment as a matter of law for one side or the other. Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 313 (2d Cir. 1981). Instead, it must evaluate "each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Id. at 314.

  B. The Landmarks Preservation Law

  In 1965, the New York City Council enacted the Landmarks Law "to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character." Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 110, 98 S.Ct. 2646, 2651 57 L.Ed.2d 631 (1978).*fn10 Indeed, the City Council observed with obvious concern


that many improvements . . . having . . . a special historical or aesthetic interest or value and many . . . 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 addition, distinct areas may be similarly uprooted or may have their distinctiveness destroyed, although the preservation thereof may be both feasible and desirable. . . .
N.Y.C. Code § 25-301a.
To ignore this reality would jeopardize "the standing of this city as a world wide tourist center and world capital of business, culture and government." Id. The Landmarks Law was thus enacted to promote


as a matter of public policy [the protection of] improvements . . . of special historical or aesthetic interest or value[, which] is a public necessity and is required in the interest of the health, prosperity, safety and welfare of the people. The purpose of this chapter is to . . . safeguard the city's historic, aesthetic and cultural heritage[,] . . . stabilize and improve property values in such districts[,] . . . foster civic pride in the beauty and noble accomplishments of the past[,] . . . protect and enhance the city's attractions to tourists and visitors[,] . . . strengthen the economy of the city[,] and promote the use of historic districts, landmarks, interior landmarks and scenic landmarks for the education, pleasure and welfare of the people of the city.
N.Y.C. Code § 25-301b.
  To achieve these ends, the Landmarks Law vests authority to regulate historic preservation in the eleven-member Commission, which has the power "to designate historic districts and the boundaries thereof." N.Y.C. Code § 25-303a(4); N.Y.C. Charter § 3020(6). In designating such an area, the Commission follows an established procedure involving public hearings and other administrative processes, see generally N.Y.C. Code § 25-303, to determine whether a neighborhood 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 in the" city's history, and "cause such area, by reason of such factors, to constitute a distinct section of city." N.Y.C. Code § 25-302h.

  Once an area is designated, the Commission may regulate and protect any "improvements," which is "[a]ny . . . work of art or other object constituting a physical betterment of real property." N.Y.C. Code § 25-302i. Indeed, the Landmarks Law makes it illegal for "any person in charge of . . . an improvement parcel . . . located in an historic district . . . to alter, reconstruct or demolish any improvement . . . unless the commission has previously issued" a permit. N.Y.C. Code § 25-305. Such permission is generally granted through the issuance of either a certificate of no effect ("CNE") or a certificate of appropriateness ("COA").

  The certificate of no effect essentially approves the construction, alteration, or demolition of an improvement because such work will not change or alter any architectural feature of the landmark or historical district and will be in harmony therewith. N.Y.C. Code § 25-306. The Commission must examine several factors, including whether "the proposed work would change, destroy or affect, any exterior architectural feature." Id.

  A building owner may also petition the Commission for a certificate of appropriateness, which, if granted, permits the construction, alteration, or demolition of an improvement on the grounds that such proposed work will be appropriate to the historic district around it. Specifically, the Commission must weigh "the effect of the proposed work in . . . affecting the exterior architectural features of the improvement upon which such work is to be done" and "the relationship between the results of such work and the exterior architectural features of other, neighboring improvements in such district." N.Y.C. 25-307b(1). Finally, in scrutinizing this relationship, the Commission must consider "the factors of aesthetics, historical and architectural values and significance. . . ." Id. at (b)(2).

  C. United States Constitutional Claims

  Plaintiff and City Defendants have filed cross motions for summary judgment on the Plaintiff's First, Fifth, and Fourteenth Amendment claims.

  1. The First Amendment

  The First Amendment declares in part that "Congress shall make no law . . . abridging the freedom of speech, or of the press." U.S. Const. Amdt. I. This deceptively simple "provision embodies `[o]ur profound national commitment to the free exchange of ideas,'" Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (citation omitted), and has inspired vigorous debate on its scope and protections since its inception. The Supreme Court has held that the Amendment's protections encompass not only actual speech but an individual's symbolic or expressive conduct as well. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (citations omitted).

  First Amendment protections, while broad, are not absolute, Regan v. Boogertman, 984 F.2d 577, 579 (2d Cir. 1993) (citing Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct. 2673, 2683, 49 L.Ed.2d 547 (1976)), and governments can place restrictions on speech in certain circumstances. Young v. New York City Transit Authority, 903 F.2d 146 (2d. Cir. 1990) (upholding the constitutionality of an anti-begging ordinance); New York City Unemployed and Welfare Council v. Brezenoff, 677 F.2d 232, 237 (2d Cir. 1982) (affirming speech restrictions at welfare centers and noting that "the First Amendment does not prohibit all regulation of expressive activities") (citations omitted). In cases involving expressive conduct, the "Government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word." Young, 904 F.2d at 153 (citation omitted).

  As a threshold matter, artwork has been deemed "a quintessential form of expression," worthy of and requiring First Amendment protections. People for the Ethical Treatment of Animals v. Giuliani, 105 F. Supp.2d 294, 304 (S.D.N.Y. 2000) (citing Bery v. City of New York, 94 F.3d 689, 696 (2d Cir. 1996)); see also Serra v. U.S. General Servs. Administration, 847 F.2d 1045, 1048 (2d Cir. 1988). It is of no consequence that the Work has no particularized message, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (noting that limiting First Amendment protection to those things which convey "a narrow, succinctly articulate message" would mean not protecting "the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis"), and no parties challenge whether the Amendment applies to this Work or its display in this case.

  Given the above, Plaintiff argues that the Commission's denial of its COA to remove the Work and its requirement in the CNE to reinstall the Work after repair constitute (1) an impermissible content based regulation because the Commission's decision is based on the content of the Work and (2) unconstitutionally compelled speech. As such, Plaintiff further contends that the Court must apply strict scrutiny.

  a. First Amendment Jurisprudence Standard of Review

  (1.) Content Based or Content Neutral

  When conducting First Amendment analysis, courts examine challenged governmental regulations to discern whether they are content based or content neutral since "the scope of protection for speech generally depends on whether the restriction is imposed because of the content of the speech." Universal Studios, 273 F.3d at 450; see also City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 454-55, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (noting the distinct differences in the level of scrutiny between content neutral and content based laws); Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (same) (hereinafter Turner I). Content based regulations directly restrict speech because of its content and receive strict scrutiny. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Such an action is not only presumptively invalid, R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), but "must be narrowly tailored to promote a compelling Government interest." Playboy Entertainment Group, 529 U.S. at 813 (citation omitted).

  Content neutral laws, on the other hand, regulate matters unrelated to speech and only incidentally affect First Amendment rights. Turner I, 512 U.S. at 643 ("[L]aws that confer benefits or impose burdens on speech without reference to the ideas or the views expressed are in most instances content neutral.") The Supreme Court has applied intermediate scrutiny to these laws, requiring the regulation to "further an important or substantial governmental interest unrelated to the suppression of free speech, provided the incidental restrictions did not `burden substantially more speech than is necessary to further' those interests." Turner Broadcasting Systems, Inc. v. FCC, 520 U.S. 180, 186, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (citation omitted) (hereinafter Turner II).

  When making this determination, the threshold inquiry in speech cases is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. Community for Creative Non-Violence, supra, 468 U.S., at 295, 104 S.Ct., at 3070. The government's purpose is the controlling consideration. . . . Government regulation of expressive activity is content neutral so long as it is "justified without reference to the content of the regulated speech." Community for Creative Non-Violence, supra, 468 U.S., at 293, 104 S.Ct., at 3069 (emphasis added); Heffron, supra, 452 U.S., at 648, 101 S.Ct., at 2564 (quoting Virginia Pharmacy Bd., supra, 425 U.S., at 771, 96 S.Ct., at 1830); see Boos v. Barry, 485 U.S. 312, 320-321, 108 S.Ct. 1157, 1163-1164, 99 L.Ed.2d 333 (1988) (opinion of O'CONNOR, J.).


Ward v. Rock Against Racism, 491 U.S. 781, 791-92, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).
Finally, "the validity of punishing [or restricting] some expressive conduct . . . does not depend on the showing that the particular behavior or mode of delivery has no association with a particular subject or opinion." Hill v. Colorado, 530 U.S. 703, 736 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (Souter, J. concurring); Masden v. Women's Health Center, Inc., 512 U.S. 753, 763, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) ("That petitioners all share the same viewpoint . . . does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order").

  Plaintiff Board argues that the Commission's refusal to allow removal of the Work and its requirement to reinstall the Work are content based determinations. The Commission allegedly acted because of its vehement disagreement with the Board's stance on the Work, and its approval of the Work's content unconstitutionally motivated its denial. The Board also alleges that the Commission's reliance on the well-organized public defense of the Work implies that the Commission's actions were based on the Work's content. Accordingly, the Court should subject the Commission's action to strict scrutiny.

  City Defendants contend that the Commission's actions are content neutral and unrelated to speech. The Landmarks Law was enacted to further societal objectives distinct and apart from speech, and the Commission's application of the law conformed to the speech neutral purposes behind it. The Commission alleges it did not target or even refer to speech in its determination, and the court should therefore apply intermediate scrutiny here.

  The Court finds that Landmarks Law was clearly enacted for purposes wholly unrelated to speech. Indeed, N.Y.C. Code § 25-301 explicitly states that "as a matter of public policy . . . the protection . . . of improvements . . . of special historical or aesthetic interest or value is a public necessity and is required in the interest of the health, prosperity, safety and welfare of the people." The Law does not target or focus on speech or expressive activity, and its restrictions on First Amendment rights are merely incidental. Plaintiff has cited to no provision in the Landmarks Law which directly refers to speech or expressive conduct or even implies that the law exists or was enacted to regulate First Amendment activity.

  While the Second Circuit has not examined such historical preservation laws in the freedom of expression context, other federal courts have concluded that such laws are content neutral. See, e.g., Globe Newspaper Co. v. Beacon Hill Architectural Commission, 100 F.3d 175, 183 (1st Cir. 1996) (finding that a historic district's ban on newspaper racks was content neutral because the law "does not make or otherwise demand reference to the content of the affected speech, either in its plain language or in its application"); see also Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1333-34 (11th Cir. 2001) (holding a law content neutral, which regulated street performing in a historical district); Messer v. City of Douglasville, Ga., 975 F.2d 1505, 1509 (11th Cir. 1992) (ruling that a historic district's ban on signs was content neutral); Northwestern University v. City of Evanston, 2002 WL 31027981, 00 C 7309, at *12 (N.D. Ill. Sept. 11, 2002) (dismissing university's claim that the designation of a historical district which included the school and which would require the school to file a COA to alter its structures infringed on expressive activity and finding the law content neutral); Burke v. City of Charleston, 893 F. Supp. 589, 609-610 (D.S.C. 1995) (finding regulation of sign on building wall in a historical district content neutral), rev'd on other grounds, 139 F.3d 401 (4th Cir 1998).

  While pieces of art such as the Work may be expressive, the justifications given for the COA's denial and the CNE's reinstallation requirement were clearly content neutral. Indeed, the Commission specifically noted that the Work has significant historical value to the city, is aesthetically evocative of an important era in the district's history, and contributes to the general welfare purposes of the Landmarks Law. (Pl. Exhs. 30, 31); see also Globe Newspaper Co., 100 F.3d at 183 (finding that a historical preservation regulation was content neutral, "directed at aesthetic concerns," and "unrelated to the suppression of ideas"). The Court further observes that the word "speech" and its derivatives do not appear anywhere in the Commission's explications, and Plaintiff does not cite any language in the Commission's written determinations that corroborate Plaintiff's position that the Commissioners were attempting to regulate speech. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772 (1984) (finding a law content neutral because "[t]here is no claim that the ordinance was designed to suppress certain ideas that the City finds distasteful or that it has been applied to appellees because of the views that they express"). The City Defendants' justification, which is the controlling consideration in First Amendment analysis, is limited to aesthetic and historical terms. The Commission's determination therefore is clearly content neutral.

  Moreover, Plaintiff's couching its argument in terms of the Board's supposed "approval" of the Work's "content" incorrectly equates the Commission's actions with explicit approval of the content and message the Work conveys. Indeed, the Commission's written determinations do not express approval of, nor even refer to, the Work's content, and Plaintiff does not cite anything in the record to corroborate this assertion. It is not even clear what "message" the Board claims the Work conveys. Instead, if the Commission's denial demonstrates any approbation, it is for the Work's aesthetics rather than its "content." The Board's approval of the Work's artistic and historic value is content neutral, and moreover quite distinct from approval of the Work based on its subject matter. Indeed, one may laud on artistic merit Pablo Picasso's Les Demoiselles d'Avignon, which depicts some of Avignon's more worldly female denizens, without approving of the demoiselles' occupation, which is the painting's content.*fn11 It is furthermore of no consequence that the Commission's actions may have an association with a particular opinion or group, most notably those who testified in opposition to the Board at the various public hearings held on the Board's applications to remove the Work. Hill, 530 U.S. at 736 (noting that a restriction on speech merely associated with a particular opinion does not render a law content based); Madsen, 512 U.S. at 763 (same). Indeed, Plaintiff's allegations that the Board was "caving in" to pronounced public pressure are conclusory because Plaintiff has not demonstrated any evidence which would suggest that this opinion was the motivating factor behind the regulation and also because the witnesses' testimony concerned the Work's artistic and historic prominence. Simply put, the Board has failed to proffer any evidence that the Commission's action was based on content.

  The Court therefore finds that the Commission's determinations were content neutral.

  (2.) Compelled Speech

  As a concomitant right to freedom of speech, the First Amendment also acknowledges the right of the individual "to refrain from speaking at all" since "[a] system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts." Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). Compelled speech strikes at the very heart of "our view of personhood, which encompasses what the Supreme Court later referred to as `freedom of thought,' `freedom of mind' and a `sphere of intellect and spirit,'" Carroll v. Blinken, 957 F.2d 991, 996 (2d Cir. 1992) (citations omitted), and the protection from compelled speech is essential to the maintenance of a free republic. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) ("Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.").

  The Supreme Court has applied the compelled speech doctrine to cases in which individuals or entities were forced by the state to speak, Wooley, passim (forbidding a state from requiring an individual to display "Live Free or Die" on his license plate); Barnette, 319 U.S. at 638-41 (precluding a state from making a minor student recite the pledge of allegiance), or to include the words of others in the course of their own expressive activities. See Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (declaring unconstitutional a state agency's requirement that a corporation place a consumer organization's newsletter in its bills to customers); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (holding that a state could not require a newspaper to print a politician's response to a negative editorial in the newspaper).

  The Supreme Court safeguards this important right by applying strict scrutiny to cases where compelled speech is at issue. Wooley, 430 U.S. at 716-17 (requiring the government interest to be compelling and the means narrowly tailored). Indeed, the Court has in recent cases analogized the standards for a compelled speech case to those that govern one involving content based regulations. See Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781, 797-98, 108 S.Ct. 2667, 2677-78, 101 L.Ed.2d 669 (1988) (finding that a state law compelling disclosure of certain facts in the solicitation of charitable donations was subject to strict scrutiny because it mandated the content of a speaker's speech).

  Plaintiff argues that the Commission's mandate that the Work be displayed on 599 Broadway's northern wall forces the Board to speak. Specifically, the Work's display ostensibly demonstrates to the public at large the Board's approval of the Work and its message. This forced display thus constitutes compelled speech.

  City Defendants contend that the Commission's action did not in anyway invoke the doctrine of compelled speech. They point out that none of the cases to which the Board has cited in its papers actually deals with expressive conduct, but rather situations in which an individual is actually forced to speak discrete and ideological messages. Accordingly, the court cannot use the compelled speech doctrine to evaluate Board's First Amendment arguments.

  The Court agrees with the City and finds that the Board has not demonstrated that the Commission's actions here are tantamount to compelled speech. As a threshold matter, the doctrine of compelled speech encompasses only actual speech. Plaintiff has cited no cases where solely expressive conduct has ever been deemed compelled speech by the Supreme Court (or any other federal court). The Supreme Court's precedents, cited ante, have instead all involved actual speech, which carried a particularized and explicit ideological message. The Third Circuit has noted that the application of the compelled speech doctrine to a case involving solely expressive conduct would be inappropriate, finding that "the compulsion to which [Plaintiff] objects does not involve words, which convey a clear ideological message" in "contrast to Wooley [and] Barnette." Troster v. Pennsylvania State Dept. of Corrections, 65 F.3d 1086 (3d Cir. 1995) (distinguishing a case involving a requirement that a correctional officer wear a United States flag on his uniform from the Supreme Court's compelled speech cases). This Court agrees that case law requires the state to compel actual speech and not mere conduct.

  The cases upon which Plaintiff relies to make its compelled speech argument are clearly inapposite to the present case where it is patently clear that the Work does not speak, use or display actual words conveying an ideology or particularized message. See, e.g., Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 977 (1st Cir. 1993) ("The IOLTA Rule does not compel the plaintiffs to display, affirm or distribute ideologies or expression allegedly advocated by the IOLTA program or its recipient organizations. Direct compelled speech, therefore, is not an issue in this case.") Accordingly, the compelled speech doctrine is inapposite.

  In the end, City Defendant's rationales, like the law itself, focus not on the content of the Work's expression or the use of 599 Broadway's northern wall to speak a particular message but rather emphasize the Work's historical and aesthetic value to the Historical District and its furthering the goals of the Landmarks Laws. Accordingly, the Court will apply a content neutral analysis to determine whether the Commission's actions here furthered a substantial state interest and did not unduly burden the Board's speech rights more than necessary to achieve its ends.

  b. Substantial State Interest

  To uphold a content neutral regulation, a court must first satisfy itself that the law furthers a substantial state interest unrelated to regulating or restricting speech. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The Supreme Court has held that aesthetics are a substantial governmental interest well within the police power of the state to regulate. Taxpayers for Vincent, 466 U.S. at 805 ("It is well settled that the state may legitimately exercise its police powers to advance esthetic values."); Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (seven justices finding a ban on billboards for aesthetic purposes a substantial government interest); Penn Central, 438 U.S. at 129 ("States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city . . . and appellants do not contest that New York City's objective of preserving structures and areas with special historic, architectural or cultural significance is an entirely permissible governmental goal."); Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed.2d 27 (1954) (noting that "[t]he concept of the public welfare is broad and inclusive" and includes the power of the state to legislate for the "spiritual as well as physical, aesthetic as well as monetary") (citation omitted).

  Lower courts have, in the context of First Amendment challenges to historic districts, also declared aesthetics a substantial government interest, Globe Newspaper, 100 F.3d at 187 (noting in a First Amendment challenge to a historic district regulation that aesthetics is recognized "as [a] significant government interest[] legitimately furthered through ordinances regulating First Amendment expression in various contexts") (quoting Gold Coast Publications, Inc. v. Corrigan, 42 F.3d 1336, 1345 (11th Cir. 1994) (internal quotations omitted)). The Eleventh Circuit has held that "government has a more significant interest in the aesthetics of designated historical areas than in other areas." Messer, 975 F.2d at 1510.

  Plaintiff argues that no government interest exists in this case because the interest is directly related to restricting speech. Specifically, the Board claims that the asserted aesthetic interest is "precisely the suppression of artistic expression of which the Commission disapproves, and the compulsion of expression of which it does approve." (Pl. Reply Memo. of Law at 10.) The Court should find that the content neutral test has not been met.

  City Defendants contend that the Commission has a substantial governmental interest in promoting and preserving the aesthetics of the SoHo-Cast Iron Historical District. They cite to many cases in which courts have found aesthetics a substantial interest and argue that the aesthetic goals are completely unrelated to the suppression of the Board's speech.

  The Court finds that there is no evidence in the Commission's written determinations that it was targeting speech or that the asserted interest in aesthetics relates to speech rights at all. Plaintiff does not cite to any portion of the record to support its assertion. See Young, 903 F.2d at 159 (holding that in the context of a transportation authority's anti-begging ordinance, "[t]here is nothing in the record to suggest even remotely that the TA's interests in stopping begging arise because the TA objects to a particularized idea or message" and finding the interest unrelated to restricting speech). The aesthetic interest is unrelated to speech because the Commission was not seeking to compel the Board to speak by displaying the mural but rather attempting to preserve a prominent Work it deemed integrated with the District's architecture and aesthetics and an important artistic work in itself. Plaintiff's argument is thus unavailing. c. No More Burdensome Than Necessary

  The Court must additionally ensure that the regulation adopted restricts speech "no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). Towards this end, the element is "satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation," and that the "means chosen do not burden substantially more speech than is necessary to further the government's legitimate interests." Turner I, 512 U.S. at 662 (citations omitted) (internal quotations omitted).

  The Supreme Court has explicitly noted that "content neutral regulations are not `invalid simply because there is some imaginable alternative that might be less burdensome on speech.'" Turner II, 5 U.S. at 217 (citing United States v. Albertini, 472 U.S. 675, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). "So long as the means chosen are not substantially broader than necessary to achieve the government's interest, . . . the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative." Id. at 217-18 (citing Ward, 491 U.S., at 800, 109 S.Ct., at 2758). Furthermore, a court should not sit in place of the legislature or agency and determine what it believes to be the most appropriate means. See Young, 903 F.2d at 161 ("We do not believe that United States v. O'Brien . . . assigns to the judiciary the authority to replace the Park Service as the manager of the Nation's parks or endows the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained.") (citation omitted); see also, Turner II, 520 U.S. at 218 ("It is well established a regulation's validity `does not turn on a judge's agreement with the responsible decision-maker concerning the most appropriate method for promoting significant government interests.'") (citation omitted).

  It is clear that the Commission's denial of the COA and its permit to repair and reinstall the Work furthers the substantial government objective of preserving aesthetics in an historic district much more effectively than absent such governmental action. Indeed, without the Commission's determinations, it is beyond dispute that the Work would be permanently removed and the government objective clearly frustrated. That the Work could have been placed somewhere else as Plaintiff asserts is irrelevant; the Court should not substitute its own judgment for that of the Commission's and cannot declare the Commission's determination unconstitutional merely because an imaginable, less-restrictive alternative exists. Besides, the Commission's purpose is to preserve specific buildings and areas — a purpose which often entails site-specific restrictions.*fn12

  The Commission's actions, furthermore, do not burden substantially more speech than necessary. The Commission has only incidentally affected the Board's speech rights to the exact nature of the government interest: preservation of an architectural and artistic Work. The required fabrication of lighter parts also does not burden speech in anyway; the Board does not explain how these replicas actually affect or restrict its speech rights. Finally, the regulations imposed here do not eliminate other avenues through which the Board can speak. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 295, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (holding that a content neutral regulation prohibiting protestors from sleeping on the Mall to protest homelessness did not prevent speakers from "delivering to the media, or to the public by other means, the intended message concerning the plight of the homeless"); Young, 903 F.2d at 161 ("In addition, the regulation at issue `leave[s] open ample alternative means of communication.") (citing Ward, 491 U.S. at 802). The Court finds that the Commission's denial of a COA to remove the Work permanently and its mandate that the Work be reinstalled after repairs are content neutral, that the substantial government interest in aesthetics is unrelated to speech, and that the means chosen do not substantially burden speech more than necessary. Accordingly, the Plaintiff's Motion for Summary Judgment on its First Amendment claims is DENIED and City Defendants' Motion is GRANTED.

  2. The Fifth Amendment

  The Fifth Amendment of the Constitution has long made plain that private property may not be "taken for public use, without just compensation" by the government. U.S. Const. Amdt. V. The Amendment's purpose "is to prevent the government `from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" Eastern Enterprises v. Apfel, 524 U.S. 498, 522, 118 S.Ct. 2131, 2146, 141 L.Ed.2d 451 (1998) (citation omitted). The classic example of a Fifth Amendment violation is a direct physical taking, which invariably involves the acquisition or physical appropriation of land by the government or a party authorized by the government. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 322 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (noting that the doctrine is "as old as the Republic"); see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (taking found where a law required landlords to allow cable operators to place permanent cable routers on their buildings); United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed.2d 311 (1945) (government taking hold of a lease and occupying the property constituted a taking).

  In recent years, however, this constitutional provision, commonly referred to as the Takings Clause, has been expanded to include economic regulations that deprive owners of the full use or value of their property. Eastern Enterprises, 524 U.S. at 522-23, 118 S.Ct. at 2146 (1998). The cases in which courts have applied the economic regulation analysis to challenged laws or regulations do not usually involve permanent physical invasions but rather prohibitions of private use or the economic outlay by private individuals to comply with government regulations. See Tahoe-Sierra, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (regional planning agency's moratoria on development of parcels); Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (regulation that prevented landowner from building a beach club); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (regulation banning construction on beachfront properties); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (zoning law that allowed for only single-family dwellings on land parcels); Penn Central, 438 U.S. 104, 98 S.Ct. 2646 (regulation prohibiting construction on parcel of land); id. at 126 (discussing Supreme Court cases in which compliance with regulations involved significant monetary outlays by individuals or corporations) (citing Atchison, T. & S.F.R. Co. v. Public Utilities Comm'n, 346 U.S. 346, 74 S.Ct. 92, 98 L.Ed.2d 51 (1953)); United States v. Central Eureka Mining Co., 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958) (governmental board's order closing nonessential gold mines during war); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) (regulation that prevented a coal company from mining coal in a particular fashion).

  The distinction between physical and economic regulation takings rests on the nature of the government conduct. In distinguishing these two analyses, the Supreme Court has noted the comparison between


two wartime takings cases, United States v. Pewee Coal Co., 341 U.S. 114, 116, 71 S.Ct. 670, 95 L.Ed.2d 809 (1951), in which there had been an "actual taking of possession and control" of a coal mine, and United States v. Central Eureka Mining Co., 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228, in which, "by contrast, the Court found no taking where the Government had issued a wartime order requiring nonessential gold mines to cease operations.
   Id. at 324 n. 18 (citing Loretto, 458 U.S. at 431). Thus, the nature of government conduct is either affirmative, such as when a government itself takes physical possession of a privately owned mine, or it is negative, as when a government merely prohibits a privately owned mine from operating.

   This distinction is more than just semantic, for it defines the very Fifth Amendment standard a court applies in a Takings Clause analysis. Economic regulations that "prohibit a property owner from making certain uses of her private property" are examined by "essentially ad hoc, factual inquiries . . . designed to allow careful examination and weighing of all relevant circumstances." Id. (internal quotations omitted) (citation omitted). Such inquiries include (1) the economic impact of the regulation, (2) the extent to which the regulation has interfered with reasonable investment-backed expectations, and (3) the character of the governmental action. Penn Central, 478 U.S. at 124 (citations omitted). A court must examine these factors in relation to the parcel as a whole rather than as discrete parts thereof. Tahoe-Sierra, 535 U.S. at 326-27. Finally, "two independent hurdles" must be met before an economic regulation can even be analyzed as a possible taking: (1) plaintiff must have received a "final decision regarding the application of the [challenged] regulations to the property at issue from the government entity charged with implementing the regulations" and (2) plaintiff must have sought "compensation through the procedures the State has provided for doing so." Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 734, 117 S.Ct. 1659, 1665, 137 L.Ed.2d 980 (1997) (citations omitted) (internal quotations omitted).

   On the other hand, physical takings typically require a less factually intense analysis. "When the Government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner . . . regardless of whether the interest that is taken constitutes an entire parcel or merely part thereof." Brown v. Legal Foundation of Washington, 538 U.S., 216 233, 123 S.Ct. 1406, 155 L.Ed.2d 376 (2003) (citation omitted) (emphasis added). This per se rule does not depend on the nature of the physical invasion as "even a minimal `physical occupation of real property' requires compensation under the Clause." Palazzolo, 533 U.S. at 617 (citations omitted). Furthermore, a taking does not require that the government itself appropriate the property at issue; it can also occur when the government authorizes a third party to occupy since "an owner suffers a special kind of injury when a stranger directly invades and occupies" his property. Loretto, 458 U.S. at 436 (emphasis in original); Building Owners and Managers Ass'n Int v. F.C.C., 254 F.3d 89, 97 (D.C. Cir. 2001) (observing that "the per se taking rule applies to regulations that `require the landlord to suffer the physical invasion of his building by a third party'") (citation omitted).

   The Supreme Court, however, has cautioned that since "[1] and-use regulations are ubiquitous" and "most of them impact property values[,] [t]reating them all as per se takings would transform governmental regulation into a luxury few governments could afford." Tahoe-Sierra, 535 U.S. at 324. Indeed, in Loretto, where the high court declared that a New York law which authorized cable companies to effect "a direct physical attachment of plates, boxes, wires, bolts and screws to the building, completely occupying space . . . along the building's exterior wall" constituted a taking, the majority opinion stated that the per se rule is a "very narrow" one. Loretto, 458 U.S. at 438, 442. The majority explicitly limited the case's holding, mindful that

[t]his Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails. . . . Consequently, our holding today in no way alters the analysis governing the State's power to require landlords to comply with building codes and provide utility connections, mailboxes, smoke detectors, fire extinguishers. . . .
Id. at 441 (citations omitted).
What made these laws merely economic regulations for Fifth Amendment analysis rather than direct physical takings like the cable law was the simple fact of ownership. See Lawrence A. Tribe, American Const. Law (2d ed. 1988) (observing that "the majority concedes that its analysis turns upon the fact that the CATV company, rather than the landlord, owns the offending installation.") (emphasis in original). Indeed, the Court noted that it would be "a different question from the question before us," if the landlord owned the installation since "[o]wnership would give the landlord rights to the placement, manner, use, and possibly the disposition of the installation." Id. at 441 n. 19. Thus, ownership by the property owner of a physical installation, even if required by law, would not require him "to suffer the physical occupation of a portion of his building by a third party," and such regulations would "be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity." Id. (emphasis added). Ownership accordingly plays a crucial role in determining the nature of government conduct in physical occupation cases. If the physical occupation belongs to a third party, it is a direct physical takings to which a per se rule is applied. However, a physical occupation owned by the property owner himself is merely an economic regulation governed by the "ad hoc, factual" inquiry of Penn Central.

   It is clear to the Court that by the Commission's determinations, the Board cannot permanently remove the Work and must reinstall it. The Work's reinstallation will entail the physical occupation of a portion of 599 Broadway's northern wall as even City Defendants concede. (City Def. 56.1 Stmt. ¶¶ 36, 37 (noting that evidence in the record establishes that "[t]he Commission conditioned the removal of the sculpture and repair of the side of the building on the reinstallation of" the Work and that the reinstallation will "not . . . cause damage to the building"); see also Pl. Exh. 31.)*fn13

   What is not clear, however, is who owns the Work itself. Neither the Board nor City Defendants cite to any documents or other evidence in the record that establish ownership of the Work at any point in its history. The parties to the current Motions do not raise the issue of ownership as key nor discuss it at any length in their papers. The Board has previously asserted a proprietary interest in the Work. (Pl. Memo. of Law in Oppos. to Def. Myers' Cross-Motion at 1-4.) Indeed, while it was not dispositive or material to the resolution of the previous Motion, the Court noted in Board I that both the Board and Myers vigorously disputed ownership of and title to the Work. See Board I, 2003 WL 21403333 at *20 n. 24 ("The question of title and ownership over the Work is one that the parties to this motion vigorously dispute."). That issue remains unresolved between Plaintiff or Myers, and the Court notes that City Walls, who financed a large portion of the original installation has never indicated what proprietary rights in the Work, if any, it believes it has. Finally, the replicas which the Board fabricated for reinstallation further complicates an already uncertain ownership question.*fn14 In the absence of a definitive owner for the Work, both Plaintiff and City Defendants' respective takings arguments are overbroad and untenable. Indeed, to adopt Plaintiff's contention, the Court would be essentially overlooking the holding in Loretto and finding that any physical occupation is tantamount to a per se taking regardless of ownership. This would seriously hobble the Landmarks Law by potentially transforming every regulation into a direct physical occupation; it also ignores Loretto's express indication that some physical invasions do not amount to per se takings. Similarly, the Commission's argument that this case only presents an economic regulation prohibiting a specific use is overbroad and untenable. Adopting such an argument, the Court would effectively contravene Loretto's holding by transforming all physical occupation cases into mere economic regulations.

   Other courts have noted the importance of ownership as a decisive factor. See e.g., Kaufman v. City of New York, 717 F. Supp. 84, 93-94 (1989) (finding that a law requiring landlords who were renovating their buildings to seal off whole areas which contain asbestos was not a taking because the "regulations clearly allow plaintiffs to maintain all their [ownership] rights of control over the manner in which compliance with the law is achieved") (citing Loretto, 458 U.S. at 441-42 n. 19); GTE Northwest, Inc. v. Public Utility Comm'n of Oregon, 900 P.2d 495, 503 (Or. 1995) (Graber, J.) (finding a taking where a law vested ownership of a physical installation with a third party rather than the landowner and noting that "[t]he fact of ownership is . . . not simply incidental").

   As with the VARA claim in Board I, the parties have not proffered any evidence on a genuine issue of material fact.*fn15 The Court is precluded from granting summary judgment in light of this. Accordingly, both the Board's and City Defendants' Motions for Summary Judgment on their Fifth Amendment claims are DENIED.

   3. The Equal Protection Clause of the Fourteenth Amendment

   The Fourteenth Amendment to the Constitution precludes any state from denying "to any person within its jurisdiction the equal protection of the laws." Const. Amdt. XIV. It is axiomatic that the Clause "is essentially a direction that all persons similarly situated should be treated alike." Zahra v. Town of Southhold, 48 F.3d 674, 683 (2d Cir. 1995) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)); see also Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999). The prototypical claim arising from this Clause "involves discrimination against people based on their membership in a vulnerable class." Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).

   The Second Circuit, however, has also "long recognized that the equal protection guarantee . . . extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials," id. (citing LeClair v. Saunders, 627 F.2d 606, 608-10 (2d Cir. 1980)), even though such a claim is a "murky corner of equal protection law in which there are surprisingly few cases." LaTrieste Restaurant and Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (citation omitted). Originally, this "class of one" cause of action required that the plaintiff prove: "(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, sex, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Id. at 590; Lisa's Party City, 185 F.3d at 16 (same). In 2000, the Supreme Court decided Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam), in which the high court noted that

[o]ur cases have recognized successful equal protection claims brought by a "class of one," where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.
Id. at 564.
The "animus" requirement is notably absent from the Supreme Court's formulation.*fn16 Cobb v. Pozzi, 363 F.3d 89 (2d Cir. 2004), appears to recognize that Olech did, in fact, eliminate the illicit motivation element. Id. at 111 (noting that "the Supreme Court did not depart from well settled equal protection principles in Olech" and that equal protection claims may be brought by a "class of one" where "the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment") (quoting Olech, 528 U.S. at 564).*fn17 Accordingly, the Olech formulation is controlling here. The Second Circuit has required in Fourteenth Amendment equal protection claims that a final determination must be obtained before a standing claim is ripe for adjudication. Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88-89 (2d Cir. 2002).

   In proving disparate treatment, "similarly situated" means that "the persons with whom plaintiff compares [itself] must be `similarly situated in all material aspects.'" Estate of Morris v. Dapolito, 297 F. Supp. 2d 680, 686 (S.D.N.Y. 2004) (citation omitted). "[E]xact correlation, [however], is neither likely nor necessary," and "the test is whether a prudent person would think them roughly equivalent." DePace v. Flaherty, 183 F.Supp.2d 633, 640 (S.D.N.Y. 2002) (quoting Penlyn Dev. Corp. v. Inc. Vill. of Lloyd Harbor, 51 F.Supp.2d 255, 264 (E.D.N.Y. 1999)). In other words, "apples should be compared to apples." Estate of Morris, 297 F.Supp.2d at 686 (quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989)). Additionally, a plaintiff must demonstrate that the defendants knew of others similarly situated such that their differential treatment of plaintiff was intentional. Giordano, 274 F.3d at 751 (dismissing a "class of one" claim because plaintiff could not prove that the city doctors who recommended his discharge actually knew that a similarly situated employee was treated differently). Indeed, "[k]nowledge is ordinarily required to establish the first element [of a selective treatment claim]." Diesel v. Town of Lewisboro, 232 F.3d 92, 104 (2d Cir. 2000) (citation omitted).

   To demonstrate "rational basis," a court need only satisfy itself that "there is any reasonably conceivable state of facts that could provide rational basis" for the decision, and no violation of equal protection has occurred. Moccio v. New York State Office of Court Admin., 95 F.3d 195, 201 (citing Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993)). Only when a land-use board acts with "no legitimate reason for its decision" can a "class of one" claim proceed. Harlen, 273 F.2d at 500. When examining such a decision for rational basis, "`[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it' . . . whether or not the basis has a solid foundation in the record." Heller, 509 U.S. at 320-21 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 21 L.Ed.2d 289 (1973)). Indeed, not only is the decision accorded a strong presumption of constitutionality, Beatie v. City of New York, 123 F.3d 707, 712 (2d Cir. 1997), but the government entity does not even have the "obligation to produce evidence to sustain the rationality" of its decision. Garcia v. S.U.N.Y. Health Services Center, 280 F.3d 98, 109 (2d Cir. 2001) (citation omitted). Finally, the Supreme Court reaffirmed in Heller that "[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific." Heller, 509 U.S. at 321 (quoting Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 2184, 57 L.Ed.2d 730 (1913)).

   As a threshold matter, neither party has briefed the issue of ripeness, but the Court nonetheless finds that the denial of the COA to remove the Work permanently does constitute a final determination by the agency which holds the ultimate authority in the matter. However, to the extent that the claim relates to selective treatment stemming from applications for outdoor advertising space in the District, there has been no final determination as the Board withdrew its proposal before the Commission could grant or deny it, (City Record at 1115, 1163), and the Court cannot accordingly adjudicate that portion of the claim.

   a. Intentional Disparate Treatment of Those Similarly Situated

   Plaintiff cites three specific buildings, 600 Broadway, 169 Mercer, and 475 West Broadway which it claims are similarly situated to its own and which demonstrate the intentional disparate treatment. It is undisputed that all three buildings fall within the boundaries of the Soho Cast-Iron Historic District and all at one point displayed wall murals. These artworks were created under the auspices of City Walls, the same organization responsible for the creation of the Work. Unlike 599 Broadway, all three buildings applied for and received the consent of the Commission to place large-scale advertisements on their exterior walls.

   City Defendants argue that the three buildings are not similarly situated. The Work is a sculpture which is an entirely different medium from the three wall paintings to which Plaintiff cites. The murals on all three were badly deteriorated, and "none of them involved a work of the stature of `The Wall' which won the respect and support of the museum, artistic and preservation community." (City Defs. Memo. of Law at 35.)

   (1.) 600 Broadway

   There is no evidence that the owners of 600 Broadway ever applied for a COA to remove the wall mural as the Board did in the instant case. Instead, the only documents Plaintiff has presented regarding this building involve COAs in which the Commission approved the placement of large advertisements onto the exterior wall of the building. (Pl. Exh. 35 ("The proposal as approved consists of painting a sign on the north masonry wall . . . [which will feature] the letters `DKNY'."); Exh. 36 ("The proposed work consists of the installation of a painted sign" for Nike); Exh. 37 (same for Fila).) Nowhere in these documents is the mural by Pekarsky mentioned nor is its removal contemplated or discussed. There is also no evidence that the mural remained on the wall at the time of the application for a COA. Furthermore, the Pekarsky painting was two-dimensional while, as City Defendants note and Plaintiff does not contest, the "Work" is the "only three-dimensional City Wall project ever commissioned." (City Defs. 56.1 Stmt. ¶ 46.) These facts alone clearly distinguish 600 Broadway from the situation of the instant case. Indeed, unlike 599 Broadway, the COAs did not involve removal of an existing artwork but only the display of advertising. It is materially different such that a prudent person would not find the situation similar. Accordingly, the Court finds that 600 Broadway is not similarly situated.

   (2.) 169 Mercer and 475 West Broadway

   Unlike 600 Broadway, the Commission admits that it permitted removal of the artworks that existed on 169 Mercer and 475 Broadway's exterior walls. (City Defs. Memo. of Law in Oppos. at 6.) Like the Pekarsky painting, however, both works were two-dimensional while, as noted above, the Work was the only three-dimensional artwork of its kind. As such, both differ in material respects from the Work and are not similarly situated for equal protection analysis. See Burke, 893 F. Supp. at 599 (finding a three-dimensional, site-specific work not similarly situated to an artist's painting because in part it was not a "mural" at all).

   Moreover, in the case of 169 Mercer, the actual artist herself indicated that she had no objection to the removal of her work from the building's exterior wall. At 475 West Broadway, the painting by Crum was featured on an exterior wall abutting a vacant lot. When a new building was constructed there, it partially obscured the painting. The Landmarks Commission has no legal ability to control building heights and could not have saved the painting if it wanted. N.Y.C. Code § 25-304 ("Nothing contained in this chapter shall be construed as authorizing the commission, in acting with respect to any historic district . . . to regulate or limit the height and bulk of buildings. . . ."). Thus, by the time of the owner's application to remove the painting, up to half of the painting was permanently obscured by the new construction. This fact distinguishes 475 West Broadway materially from 599 Broadway. The Court therefore finds that both 169 Mercer and 475 West Broadway are not similarly situated. Accordingly, the Court finds that none of the three works of art to which Plaintiff cites are similarly situated to its own. The Board has thus failed to demonstrate evidence of an essential element to its Equal Protection claim.

   b. Rational Basis

   Plaintiff argues that the Commission lacked any rational basis for making its determination, rendering its denial of a COA arbitrary and irrational. It attacks the aesthetics justification of the Board by maintaining that the Commission cannot "decide which works of visual art it considers to be finest." (Pl. Reply Memo. of Law at 19.) It further points out that there can be no "principled reason why, having allowed all of the other murals that were crated in the 1960's and 1970's to disappear," the Board must replace the Work after it effectuates repairs on its Building. (Id. at 20.)

   City Defendants argue that the Commission did have a rational basis in refusing to grant the COA to remove the Work. The Commission, they argue, is specifically charged with determining artistic and historic merit. As such, the Commission can discern between those works of art or historic and architectural features it deems important and those it does not.

   The Commission's determination detailed many legitimate rationales for treating the Work differently from others. The Commission heard testimony from several notable artists, gallery owners, and art critics regarding the historical importance of the Work. (See, Part I.D, supra.) This testimony provided facts regarding the historic and aesthetic importance of the Work — facts from which the Commission could rely in its determination. Plaintiff does not demonstrate any portion of the record where similar conclusions were made about the other three artworks. This disparity alone is enough to sustain the distinction in treatment of the Work by the Commission.

   Plaintiff's contention that the Commission cannot make such aesthetic determinations regarding the quality of a work of art is both disingenuous and unavailing. The Landmarks Law explicitly charges the Commission with determinations regarding "aesthetic, historical and architectural values and significance" when making ruling on applications for COAs. N.Y.C. Code § 25-307 b.(2). While matters of aesthetics may be inherently subjective, it does not preclude government decision making in the area. Indeed, the very purpose of the Commission is to designate historic landmarks and districts, a process which necessarily entails aesthetic and historic considerations and discernment. See First National Bank of Highland Park v. Village of Schaumburg, 85 C 2427, 1987 WL 17468 at *6 (N.D. Ill. Sept. 21, 1987) (dismissing an equal protection challenge to the designation of a historical district since "[t]he Village's disparate treatment of land reflects its legislative determination that a particular section of town contains sufficient links — tangible or otherwise — which are worthy of preservation"). The Commission could not designate an "historic district" without determining whether a particular area had "a special character or special historical or aesthetic interest or value" or protect a "landmark" without deciding if "any improvement, any part of which is thirty years old or older . . . has a special character or special historical or aesthetic value" See N.Y.C. Code § 25-302. Moreover, Plaintiff tacitly concedes this point when in its papers it explains at great length how the Commission found that the proposed advertisements at 600 Broadway, 169 Mercer, and 475 West Broadway were not inconsistent with the architectural surroundings. (Pl. Memo. of Law at 21-22.) Necessary to these findings were qualitative aesthetic and historic considerations. The Board then is trying to have its cake and eat it too: it argues that the Commission should have made aesthetic determinations similar to those it made regarding the advertisements at 600 Broadway, 169 Mercer, and 475 West Broadway but cannot undertake similar analysis respecting the quality of those artworks. They are all qualitative decisions. If in designating an area historic, the Commission can discern between areas that are more worthy of protection for historic or aesthetic concerns than surrounding areas, so too can the Commission distinguish between artworks that are more worthy of protection on historic and aesthetic grounds than others. Finally, the Commission's actions were not just for aesthetic reasons but for historic ones as well, and the Board does not assail the Commission's ability to discern between artworks and buildings on that ground.

   The City Defendants argue that the COA hearing transcripts reveal that the Commission's primary concern with the removal of the Work was concern for the aesthetic and historical importance of the Work. This Court will not substitute its judgment for that of this legislative body.

   Since as discussed above, it is clear that the Board has failed to demonstrate any evidence that the Commission acted without a rational basis in making its determination regarding the Work's removal or that there are any similarly situated individuals, that portion of the Board's Equal Protection claim is without merit. Also, since the claim regarding the advertising signage lacks ripeness, the Court has no power to adjudicate that portion of the Board's Equal Protection claim. Accordingly, the Court DENIES the Board's Motion for Summary Judgment and GRANTS City Defendant's Motion on the portion of the claim involving the removal of the Work and DISMISSES that portion of the claim concerning the guidelines for outdoor advertising in the District.

   4. The Due Process Clause of the Fourteenth Amendment

   It is axiomatic that the Fourteenth Amendment protects individuals from the deprivation of life, liberty, or property without due process of law. U.S. Const. Amt. XIV. Like an equal protection claim, a cause of action under the due process clause cannot stand absent a final determination. Dougherty, 282 F.2d at 88-89 (adopting the Williamson ripeness requirements for due process claims under the Fourteenth Amendment).

   As a threshold matter, the exact nature of Plaintiff's claim is unclear. Plaintiff does not address this claim in any of its papers before the Court. Indeed, in its opening brief, Plaintiff does not even list the due process claim as one of its causes of action. (Pl. Memo. of Law at 13.) The Complaint, however, states in pertinent part that

[t]o the extent that the Commission's treatment of plaintiff purports to be based on some form of general policy, the Commission has violated the rights of plaintiff . . . to the due process . . . because the Commission never has promulgated written rules, given property owners notice of its policies or practices, or otherwise published written standards that purport to guide its decision-making.
   Compl. ¶ 65. The Board references its claim only obliquely, observing in its papers that there "are [no] established standards by which the . . . Commission regulates signage within any historic district." (Pl. Response to City Defs. 56.1 Stmt. ¶ 19.) Thus, the Board seeks only a due process claim regarding the unpublished standards governing advertising permits.

   Plaintiff does not make any arguments on this claim. City Defendants, on the other hand, argue that the Commission has not violated the Board's due process regarding the lack of written regulations on the Commission's specifications for advertising space. Not only do they point out that the Board does not address the issue in its papers, City Defendants cite to the Plaintiff's own 56.1 Statement in which it admits that there are several factors that the Commission scrutinizes when determining whether to permit outdoor advertising signage in an historic district. (Pl. 56.1 Stmt. 63; but see Pl. Response to City Defs. 56.1 Stmt. ¶ 19.)

   It is obvious to the Court that no final determination regarding the Board's desire to place large-scale advertisements on its exterior wall has ever occurred. Indeed, by the Board's own admission, "[P]laintiff withdrew its proposal to install an advertising sign above the mural." (Pl. Response to City Defs. 56.1 Stmt. ¶ 8; accord City Record at 302-03; 1115, 1163.) The withdrawal precluded a final determination by the Commission and thus this case is not ripe for adjudication. See Dougherty, 282 F.3d at 88 (finding a due process claim unripe because the zoning board had not yet rendered a decision on a possible variance to a land use restriction).

   Since the claim is not ripe, the Court cannot reach the merits. Accordingly, the Court DENIES both parties' respective Motions for Summary Judgment and DISMISSES the claim.

   D. New York State Constitutional Claims

   It is well established that the New York State Constitution contains provisions similar to the First, Fifth, and Fourteenth Amendments of the federal Constitution, which protect freedom of speech and property owners from takings by the state without just compensation. N.Y. Const. Art. I, § 8 ("Every citizen may freely speak . . . and no law shall be passed to restrain or abridge the liberty of speech or of the press."); id. at Art. I, § 7(a) ("Private property shall not be taken for public use without just compensation."). The state constitutional provisions, however, are not necessarily coterminous with their federal counterparts. Indeed, New York's highest tribunal has held that "the minimal national standard established by the Supreme Court for First Amendment rights cannot be considered dispositive in determining the scope of this State's constitutional guarantee of freedom of expression." People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557-58, 503 N.E.2d 492, 510 N.Y.S.2d 844 (1986). In the takings context, the Court of Appeals has not defined the extent of the state's takings clause; it has at least found them equal in protective scope. Seawall Assocs. v. City of New York, 74 N.Y.2d 92, 102-106, 542 N.E.2d 1059, 544 N.Y.S.2d 542 (1989) (analyzing a takings case and finding a takings under both the federal and state constitutions).

   Plaintiff argues that state constitution provides greater protections in both the First and Fifth Amendment contexts, thus providing an alternative and stronger basis for finding constitutional violations in this case.

   City Defendants contend, on the other hand, that the state constitution does not confer any broader protections than that of the federal constitution when causes of action arise under the First and Fifth Amendments.

   1. Freedom of Speech

   Neither party has briefed this issue in depth. Nevertheless, it is clear to the Court that New York's Court of Appeals has held that the New York State Constitution grants broader First Amendment rights to individuals under a content neutral analysis. Specifically, the Court of Appeals has added a more stringent element to an O'Brien claim, namely that the law must be "no broader than needed to achieve its purpose." Town of Islip v. Caviglia, 73 N.Y.2d 544, 559, 542 N.Y.S.2d 139, 540 N.E.2d 215 (1989) (citation omitted). Essentially, this additional element requires that the state pursue only those means that directly secure the governmental interest. See id. ("In absence of evidence that such means were not adequate . . . we judged the relief requested by the District Attorney broader than necessary to control the illegal conduct.").

   The Commission's determinations here, as the Court has already noted under the federal standard, burden the speech interests of Plaintiff to the exact nature of the government's interest. There is no more direct means of securing the Commission's interest in the District's preservation and aesthetics than by requiring Plaintiff to maintain the Work where it has resided for the past three decades. To "suggest alternative provisions amounts to nothing more than a disagreement with the [Commission] over how much corrective action is wise and how best it may be achieved," and such judicial usurpation of legislative functions is highly discouraged. Town of Islip, 73 N.Y.2d at 560. Moreover, there are alternative channels of communication open to the Board. Stringfellows of New York, Ltd. v. City of New York, 91 N.Y.2d 382, 402, 671 N.Y.2d 406 (1998) (requiring "the City . . . assure reasonable alternative avenues of communication"). Finally, the Court of Appeals cases that have dealt with this higher standard are inapposite to the case at bar since all three recent cases involved sex shop/adult bookstore closure orders and zoning ordinances. See Stringfellow's of New York, 91 N.Y.2d 382 (zoning law affecting the placement of adult-oriented businesses); Town of Islip, 73 N.Y.2d 544 (same); Arcara, 68 N.Y.2d 553 (one-year closure order of adult bookstore for unrelated illegal acts performed by patrons).

   Since New York's free speech protection was not violated here, the Court accordingly DENIES Plaintiff's Motion for Summary Judgment and GRANTS City Defendant's Motion.

   2. The Takings Clause

   The Court of Appeals in Seawall Associates found a taking under both the New York state and federal constitutions where New York City required that vacant single-room occupancy units be rented to new tenants. 74 N.Y.2d at 102-06. However, unlike the court in Arcara, the state tribunal never explicitly stated that the state constitutional protections were higher than the federal takings clause.

   Finally, given the uncertainty of ownership at this point and the absence of any explicit language from the Court of Appeals that the state constitution's just compensation clause is broader than the federal constitution's, it would be premature to rule on the state taking claim here. Accordingly, the Court adopts its analysis of the Fifth Amendment as discussed above and DENIES both Plaintiff's and City Defendants' respective Motions for Summary Judgment.

   3. The Fourteenth Amendment Claims

   Finally, the parties only cursorily broach the state equal protection and due process claims contained in the Complaint. Plaintiff acknowledges that the standards that govern New York's version of the Fourteenth Amendment are essentially co-extensive with the federal Constitution. Golden v. Clark, 76 N.Y.2d 618, 563 N.Y.S.2d 1 (1990); Central Sav. Bank in City of New York v. City of New York, 280 N.Y. 9, 10, 19 N.E.2d 659 (1939). As such, the Court adopts its above discussion of the Fourteenth Amendment claims and accordingly DENIES Plaintiff's Motion for Summary Judgment and GRANTS City Defendant's Motion.

   E. Article 78 Claims

   Article 78 of New York's Civil Practice Law and Rules establishes a court procedure by which administrative determinations by state and local entities may be challenged. NY CPLR §§ 7801 et seq. Specifically, § 7803 limits the scope of the proceedings; "[t]he only questions that may be raised in [such] a proceeding" are "whether the body . . . proceeded . . . in excess of jurisdiction" or "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion." NY CPLR § 7803.

   Article 78, however, is a "novel and special creation of state law" and provides "a purely state procedural remedy." Birmingham v. Ogden, 70 F. Supp. 2d 353, 372 (S.D.N.Y. 1999) (citations omitted). Such proceedings differ "markedly from the typical civil action brought in [federal] court," Camacho v. Brandon, 56 F. Supp. 2d 370, 380 (S.D.N.Y. 1999), "were designed for the state courts, and are best suited to adjudication there." Lucchese v. Carboni, 22 F. Supp. 2d 256, 258 (S.D.N.Y. 1998). Indeed, Article 78 by its own terms vests jurisdiction exclusively in the state supreme court and in rare instances the state appellate division. N.Y. CPLR 7804(b) ("A proceeding under this article shall be brought in the supreme court [as specified by state law]."); id. (Practice Commentary 7804:2) (noting that the law grants "exclusive subject matter jurisdiction" to the state courts); Cartagena v. City of New York, 257 F. Supp. 2d 708, 710 (S.D.N.Y. 2003) ("State law does not permit Article 78 proceedings to be brought in federal court.").

   "Federal courts are loathe to engage in" the adjudication of such singularly state matters. Reyna v. State University of New York College at New Paltz, 00 Civ. 733, 2001 WL 282953 at *3 (S.D.N.Y. Mar. 20, 2001). Indeed, district courts in this circuit have consistently declined to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over Article 78 claims. See Cartegena, 257 F. Supp. 2d at 710 (refusing to allow amendment of a complaint to allege an Article 78 claim); Adler v. Pataki, 204 F. Supp. 2d 384, 396 (N.D.N.Y. 2002) (noting federal "courts have refused to exercise supplemental jurisdiction over Article 78 claims in numerous recent cases, even where a plaintiff has one or more viable federal claims before the court" and dismissing an Article 78 claim); Reyna, 2001 WL 282953 at *3 (declining to hear an Article 78 claim under supplemental jurisdiction); Verbeek v. Teller, 114 F. Supp. 139, 142-43 (E.D.N.Y. 2000) (same); Birmingham, 70 F. Supp.2d at 372 (same); Camacho, 56 F. Supp. 2d at 380 (remitting "him to state court to seek review of his termination through the special vehicle the state has provided for such review"); Lucchese, 22 F. Supp.2d at 258 (declining to exercise supplemental jurisdiction).*fn18 This Court agrees with the reasoning of these cases. The Article 78 proceeding is a unique state procedural law best left to the expertise of the state courts, the very places where the state legislature intended such actions to be tried. Furthermore, "the interests of judicial economy are not served by embroiling this court in a dispute over local laws and state procedural requirements." Birmingham, 70 F. Supp.2d at 372.

   Accordingly, the Court declines to exercise supplemental jurisdiction over this claim. Both Plaintiff and City Defendants' Motions for Summary Judgment on this claim are DENIED and the claim is hereby DISMISSED without prejudice.*fn19


   Having examined the record, the parties briefs, and the pleading papers, the Court has for the reasons discussed above, determined that:

1. Plaintiff Board's Motion for Summary Judgment is DENIED in all respects; 2. City Defendants' Motion for Summary Judgment is GRANTED on the First Amendment and Fourteenth Amendment due process and equal protection claims except that portion of the Fourteenth Amendment due process claim involving advertising signage.
3. City Defendant's Motion for Summary Judgment is DENIED regarding the takings claim under the federal and state constitutions, the due process claim of the Fourteenth Amendment, the equal protection claim of the Fourteenth Amendment relating to advertising, and the Article 78 proceeding;
4. Plaintiff's claims under the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause relating to the advertising signage, and Article 78 of New York's CPLR are DISMISSED.
   Having determined each party's respective Motions for Summary Judgment, the Court observes that the following claims have survived this and the Court's June 17, 2003 Opinion:


1. Both Plaintiff Board and Defendant Myers' claims under the Visual Artist Rights Act, 17 U.S.C. § 101 et seq. 2. Plaintiff's takings claim under the federal and state constitutions.
   On these matters only, the Court sets the following pre-trial submissions dates:


Joint Pre-Trial Statement ("JPTS"), Requests to Charge and Proposed Voir Dire are to be filed no later than November 12, 2004;
Memoranda of Law addressing those issues raised in the JPTS are also to be filed no later than November 12, 2004;
Responses to the Memoranda are to be filed no later than November 29, 2004.
All submissions shall be in accordance with the Individual Practices of Judge Deborah A. Batts, as amended July 14, 2004. See Individual Practices, available at:


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