FARASH CORPORATION v. CITY OF ROCHESTER

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of the FARASH CORPORATION, Max M. Farash and Jalynn, Inc., Petitioners-Respondents, v. CITY OF ROCHESTER and City of Rochester Preservation Board, Respondents-Appellants.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER and BALIO, JJ. Donald L. Crumb, Jr., Rochester, for respondents-appellants. Edward H. Fox, Rochester, for petitioners-respondents. Katherine Raub Ridley, Binghamton, for Landmark Society of Western New York and Preservation League of New York State, amicus curiae.

Petitioners acquired the former Eastman Dental Dispensary, a building at 800 East Main Street in the City of Rochester that has been vacant since 1978.   They obtained landmark status for the building in 1984 and it is listed on the National Register of Historic Places.

On March 31, 1999, respondent City of Rochester Preservation Board (Board) voted to deny petitioners' application for a Certificate of Appropriateness to demolish the landmark structure and redevelop the site with retail business.   Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, judgment ordering respondents to grant petitioners' application for a Certificate of Appropriateness for demolition and ordering respondents to issue a demolition permit.

Supreme Court remitted the matter to the Board to vacate its findings that economic hardship was not proven, and that, if proven, it would have been self-created or self-imposed.   The court further directed the Board to make findings that petitioners have proved economic hardship and that the situation was not self-created or self-imposed.   The court directed the Board to issue a Certificate of Appropriateness for demolition and directed petitioners to submit a specific plan for redevelopment of the real property that the Board shall consider to determine whether a Certificate of Appropriateness for that redevelopment should be issued.   The court further directed that a demolition permit shall not be issued until a Certificate of Appropriateness for the redevelopment plan is issued, and the court specified that demolition not occur until a demolition permit is issued and all appeals are exhausted.

 We reverse.   It is well settled that an administrative determination concerning a landmark designation is entitled to deference and will not be disturbed “if it has support in the record, a reasonable basis in law, and is not arbitrary or capricious” (Matter of Teachers Ins. & Annuity Assn. of Am. v. City of New York, 82 N.Y.2d 35, 41, 603 N.Y.S.2d 399, 623 N.E.2d 526;  see, Lutheran Church in Am. v. City of New York, 35 N.Y.2d 121, 128, n. 2, 359 N.Y.S.2d 7, 316 N.E.2d 305;  Shubert Org. v. Landmarks Preservation Commn. of City of N. Y., 166 A.D.2d 115, 120, 570 N.Y.S.2d 504, appeal dismissed 78 N.Y.2d 1006, 575 N.Y.S.2d 456, 580 N.E.2d 1059, lv. denied 79 N.Y.2d 751, 579 N.Y.S.2d 651, 587 N.E.2d 289, cert. denied 504 U.S. 946, 112 S.Ct. 2289, 119 L.Ed.2d 213).  “[T]he court may not substitute its judgment for that of the administrative body” (Shubert Org. v Landmarks Preservation Commn. of City of N. Y., supra, at 120, 570 N.Y.S.2d 504;  see, Matter of Society for Ethical Culture in City of N.Y. v. Spatt, 68 A.D.2d 112, 116, 416 N.Y.S.2d 246, affd. 51 N.Y.2d 449, 434 N.Y.S.2d 932, 415 N.E.2d 922, rearg. dismissed 52 N.Y.2d 1073, 438 N.Y.S.2d 1029, 420 N.E.2d 413).   Issues concerning the adequacy of petitioners' submissions with respect to costs and economic hardship and the effect, if any, of neglect of maintenance on the condition of the property are generally left to the administrative body (see, Matter of Lemme v. Dolan, 163 A.D.2d 717, 719, 558 N.Y.S.2d 991).   Here, the determination of the Board was not irrational, arbitrary or capricious.   The Board determined that petitioners failed to establish economic hardship because they did not adequately explore alternative uses for the building.   The Board also determined that the hardship was self-created or self-imposed through neglect of maintenance and that petitioners' marketing efforts were inadequate.   Thus, the petition must be dismissed.

Judgment unanimously reversed on the law without costs and petition dismissed.

MEMORANDUM: