IN RE: SOUTH STREET SEAPORT COALITION (2023)

Judgment (denominated an order), Supreme Court, New York County (Arthur F. Engoron, J.), entered January 13, 2023, granting the petition to invalidate a Certificate of Appropriateness (COA) issued by respondent Landmarks Preservation Commission (LPC) that would permit the construction of a particular building at 250 Water Street in Manhattan, and denying respondents’ cross-motions to dismiss, unanimously reversed, on the law, without costs, the petition denied, the cross-motions granted, and the proceeding brought pursuant to CPLR article 78 dismissed.

LPC's determination to issue a COA, following its extensive consideration of the factors set forth in Administrative Code of the City of New York § 25–307(b)(1)-(2), was not arbitrary and capricious or irrational (see generally Matter of Save America's Clocks, Inc. v. City of New York, 33 N.Y.3d 198, 204, 207, 100 N.Y.S.3d 639, 124 N.E.3d 189 [2019]).  The COA itself sets forth the basis for LPC's determination, which has ample support in the record and did not rely on improper considerations.  The statements made during the public hearings concerning funding for a district museum do not show that the final determination actually rested upon improper considerations (id. at 209–210, 100 N.Y.S.3d 639, 124 N.E.3d 189;  Matter of Hilbertz v. City of New York, 210 A.D.3d 1089, 1092–1093, 179 N.Y.S.3d 696 [2d Dept. 2022]).  Contrary to petitioners’ contention, the record otherwise does not establish an improper quid pro quo or improper communications between LPC and the developer (cf.  City of New York v. 17 Vista Assoc., 84 N.Y.2d 299, 306, 618 N.Y.S.2d 249, 642 N.E.2d 606 [1994] [holding “agreement entered into between the parties, whereby the plaintiff, in exchange for a predetermined sum of money, would provide to defendant an expedited and favorable determination ․ is void as violative of public policy and is unenforceable”]).

While an administrative determination which reaches a different result on essentially the same facts as a prior determination may be arbitrary if the agency fails to indicate its reason for reaching a different result (see Matter of Charles A. Field Delivery Serv. [Roberts], 66 N.Y.2d 516, 520, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985]), petitioners failed to establish that the prior COA denials from the early-to-mid 1980s were based on essentially the same facts as those presented here.  Approval of a COA requires the LPC to review many different factors, not just the height of a building, and review of such applications are nuanced and fact-specific (see generally Matter of Rivera v. Shea, 211 A.D.3d 594, 595, 180 N.Y.S.3d 154 [1st Dept. 2022]).

Motion to file an amicus curiae brief, granted.