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443 Realty Corp v. Syracuse Landmark Preservation Bd.

Other Lower Courts

October 5, 2007

In the Matter of 443 Realty Corporation, Petitioner For a Judgment under Article 78 of the Civil Practice Law and Rules
v.
Syracuse Landmark Preservation Board; City of Syracuse Planning Commission; and City of Syracuse Common Council, Respondents

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

For Petitioner: Hancock & Estabrook, LLP, Wendy A. Marsh, Esq. of Counsel

For Respondent: Rory A. McMahon, Esq., City of Syracuse Corporation Counsel, Nancy J. Larson, Esq. of Counsel

OPINION

Anthony J. Paris, J.

Petitioner is the owner of certain buildings located at 431 through 441 South Warren Street in the City of Syracuse, New York. Petitioner seeks to demolish said buildings and made proper application for the necessary permits and certificates from the various entities which have jurisdiction over such demolition requests.

Respondent, SYRACUSE LANDMARK PRESERVATION BOARD (hereinafter referred to as "LPB") designated this property as a protected site and this designation was approved by Respondent, CITY OF SYRACUSE COMMON COUNCIL (hereinafter referred to as "COMMON COUNCIL"). The LPB subsequently denied Petitioner's application for a Certificate of Appropriateness which was required in order for Petitioner to secure a demolition permit. Thereafter, Respondent, CITY OF SYRACUSE PLANNING COMMISSION (hereinafter referred to as "PLANNING COMMISSION") denied Petitioner's appeal of the LPB's denial.

Petitioner, by Notice of Verified Petition filed on the 27th day of April 2007, commenced a combined Article 78 proceeding and action for declaratory judgment seeking a judgment setting aside the decision of the LPB denying Petitioner's application for the Certificate of Appropriateness, the decision of the PLANNING COMMISSION denying the appeal of the LPB's denial and the PLANNING COMMISSION'S denial of Petitioner's special permit application. Petitioner further seeks an order directing the LPB and PLANNING COMMISSION to issue the Certificate of Appropriateness and special permit. In addition, Petitioner seeks a judgment pursuant to CPLR 3001declaring that the Respondent engaged in the unlawful taking of the property in violation of the 5th Amendment of the United States Constitution.

Respondent, by Verified Answer filed on July 2, 2007, denied and opposed the allegations and, by Notice of Motion also filed on July 12, 2007, moved to dismiss Petitioner's declaratory judgment action. Various responses, replies and sur-replies were filed by the parties, all of which were accepted by the Court and comprise the record of this proceeding.

The standard for judicial review of administrative determinations such as the one at bar is whether or not the determination by the respective administrative body was illegal, arbitrary, capricious, or an abuse of discretion. See: MATTER OF IFRAH v. UTSCHIG, 98 N.Y.2d 304 (2002); MATTER OF MAY v. TOWN OF LAFAYETTE ZBA, ET, 2007 WL 2812764, 2007 NY Slip Op. 07243 (Sept. 2007)

Based on the record and arguments advanced by knowledgeable counsel for the respective parties and for the reasons set forth below, the Court determines that the COMMON COUNCIL is not a proper party to the Article 78 proceeding and that proceeding only is hereby dismissed against this Respondent; and it is SO ORDERED. The Court also determines that the actions of Respondents LPB and PLANNING COMMISSION were arbitrary and capricious and an abuse of discretion.

It is uncontroverted in the record that Petitioner purchased the subject property on South Warren Street after it had been abandoned and in disrepair for approximately ten (10) years. The purpose of this acquisition was to protect the integrity of Petitioner's adjacent property and the printing business which occupied Petitioner's property. Upon purchase, Petitioner had the water to the buildings shut off to prevent further leakage and damage to the printing machinery and secured the structures to prevent further vandalism.

Petitioner's investigation of the possible renovation of these buildings concluded that renovation would not be economically feasible. Consequently, Petitioner, in 2003, sought a demolition permit. This application set in motion a procedure whereby the LPB was required to determine whether or not this property could be designated as a Protected Site, and, if so, no demolition would be ...


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