Matter of 989 Hempstead Turnpike LLC v Town Bd. of the Town of Hempstead

[*1] Matter of 989 Hempstead Turnpike LLC v Town Bd. of the Town of Hempstead 2020 NY Slip Op 50716(U) Decided on June 9, 2020 Supreme Court, Nassau County Brown, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 9, 2020
Supreme Court, Nassau County

In the Matter of the Application of 989 Hempstead Turnpike, LLC and 999 HEMPSTEAD TURNPIKE, LLC, Petitioners-Plaintiffs,

against

Town Board of the Town of Hempstead, TOWN OF HEMPSTEAD LANDMARKS COMMISSION, MARGARET KELLY, and BOARD OF APPEALS OF THE TOWN OF HEMPSTEAD, Respondents-Defendants.



616855/2019



Petitioners:

Christian P Browne, Esq.

Firm Name: Sahn Ward Coschignano PLLC

Address: 333 Earle Ovington Blvd Ste 601, Uniondale, NY 11553

Phone: (516) 228-1300

Respondents:

Daniel James Evers, Esq.

Firm Name: Berkman, Henoch, Peterson, Peddy & Fenchel, P.C.

Address: 100 Garden City Plz, Garden City, NY 11530

Phone: (516) 222-6200
Jeffrey S. Brown, J.

The following papers were read on this motion: MS 01:

Petition, Memorandum of Law, Exhibits Annexed 1, 63

Answer, Memorandum of Law in Opposition, Exhibits Annexed 69

Memorandum of Law in Reply 71

Petitioners-plaintiffs 989 Hempstead Turnpike, LLC and 999 Hempstead Turnpike, LLC [*2](Petitioners) commenced this hybrid CPLR Article 78/plenary action seeking, among other things, to annul Resolution 1064-2019 of the Town Board of Hempstead adopted on October 2, 2019, which Resolution designated as a Town landmark the Franklin Square Movie Theatre located at 989 Hempstead Turnpike, Franklin Square (the Theatre). Petitioner 989 Hempstead Turnpike is the fee owner of the property. Presently, the court must rule on the relief sought in the first and third Causes of action pursuant to CPLR Article 78.[FN1]

Hempstead Town Code § 76-1 defines a landmark as "[a]ny place structure or building of historical value or aesthetic interest by reason of its antiquity or uniqueness of architectural design or as part of the development, heritage, or cultural characteristics of the town, county, state or nation." The Hempstead Town Code sets up a Landmarks Preservation Commission, which Commission is directed to consider "the special character, ambiance, historical significance, aesthetic value, and uniqueness of architectural design of the proposed landmark or landmark site wherever applicable. (Hempstead Town Code § 76-6(A)). By legislative design, should the Landmarks Commission approve the application, the Town Board must take the matter up for review at a public hearing.

On or about October 11, 2018, Katherine Tarascio submitted an "Application for Landmark Designation" to the Landmarks Commission for its consideration of the Franklin Square Movie Theatre as a possible historical landmark. The Application indicated that the Theatre has existed at the present site for nearly 90 years since being built in 1931, was one of the few examples of a theatre with an art deco façade in the Town of Hempstead. The application was supported by photographs and other evidence regarding its creation. The Landmarks Commission, as informed by the Town Code, conducted a public meeting on November 20, 2018 and a formal hearing on February 26, 2019. At these proceedings, both the applicant and counsel for the property owner were heard. Ms. Tarascio argued that the building was constructed by a prominent theater builder, A.H. Schwartz, and "is worthy of preservation not only because of its unique history and how it is reflective of broader themes in the history of theater building and movie going as an American pastime, but also because of its architectural merit, the rarity of its genre as a building category, and its prominence and importance to the local Franklin Square community." She also remarked that "little has been done to structurally augment the exterior of the building that makes it different from the original," identifying what changes have been made. Counsel for the petitioners noted, in opposition, that the exterior of the Theatre has been materially changed since its construction, with the original rounded marquee having been removed and replaced with a flat illuminated marquee.

The Landmarks Commission unanimously voted to forward the Application to the Town Board for landmark status. In its decision on the application, the Landmarks Commission stated:

WHEREAS, the application of the "Franklin Square Movie Theater," Section 35 Block 004 Lot 126, Hempstead Turnpike, Franklin Square, New York, for designation as an Historical Landmark, was filed with this Commission; andWHEREAS, a hearing was duly called and held by this Commission on February 26, 2019, pursuant to Town Code of the Town of Hempstead, and all persons present desiring to be heard on said Petition were heard thereon, and it was decided that the Franklin Square Movie Theater, 989 Hempstead Turnpike, Franklin Square New York [*3]Sec. 35 Block 004 Lot 126 be recommended to the Town Board for Historical Landmark status. In summary the Commission's decision was based on but not limited to the architectural and historical value of this structure known as the "Franklin Square Movie Theater" that was built in the early 1900's. The exterior of the Theater retains its character and deco design, andNOW, THEREFORE, BE IT RESOLVED, that this decision be filed with the Town Board of the Town of Hempstead, and that a copy thereof be forwarded to the Town Clerk of the Town of Hempstead; andBE IT FURTHER RESOLVED, that the Town Clerk mail a copy of this decision by Certified Mail, Return Receipt Requested to Town of Hempstead, 350 Front St., Hempstead, NY 11550.

Thereafter, pursuant to Town Code, the Town Board passed a resolution for a public hearing to be held on September 3, 2019 but the hearing did not go forward on that date as a notice of public hearing had not been provided to the petitioner and nearby property owners by certified mail. At the rescheduled hearing held on October 2, 2019, the Board heard presentations against the application from counsel for the petitioners, and in favor of the application from Ms. Tarascio, Margaret Kelly, President of the Community of Garden City South Incorporated, Frank Culmone, Secretary of the Franklin Square Civic Association, Sarah Kautz, Preservation Director of Preservation Long Island, and William Muller, a member of the Town Landmarks Commission. Following a unanimous vote, Hempstead Town Resolution 1064-2019 was passed. It provided, in relevant part:

WHEREAS, this Town Board did on June 21, 1983, adopt Local Law No. 61-1983, establishing the Town of Hempstead Landmarks Preservation Commission; andWHEREAS, the Landmarks Preservation Commission has submitted a recommendation to the Town Board that the "Franklin Square Movie Theatre," 989 Hempstead Turnpike, Franklin Square, New York, be designated as an Historical Landmark; andWHEREAS, a public hearing was duly called and thereupon conducted on October 2, 2019, by this Town Board and all parties desiring to be heard on said recommendation were heard thereon; andWHEREAS, this Town Board, after consideration thereof, deems it to be in the public interest to approve said recommendation;NOW, THEREFORE, BE IT RESOLVED, that the recommendation of the Town of Hempstead Landmarks Preservation Commission that the "Franklin Square Movie Theatre", 989 Hempstead Turnpike, Franklin Square, New York, Sec 35, Block 004, Lot126 be designated as an Historical Landmark, be and the same hereby is approved.

In this proceeding, petitioners assert that the Resolution is procedurally defective because the Town Board failed to hold its hearing within 90 days of the determination by the Landmarks Commission as required by Town Code § 76-6(C) and because the Town Board failed to issue or adopt any findings of fact in support of its determination. Finally, petitioners assert that even if the procedural defects do not defeat the Resolution, the evidence presented to the Town Board was wholly insufficient to support its decision.

In response, respondents argue that the Town Board's failure to review or adopt the Landmarks Commission's recommendation within 90 days of its issuance did not divest the Town Board of its jurisdiction because the time limit contained in Town Code § 76-6(C) is directory, rather than mandatory, and in the absence of any "substantial prejudice" related to the [*4]delay, the administrative determination cannot be annulled. Further, while the Town Board did not issue formal findings of fact when it adopted the Resolution, such formal findings are not necessary where the record provides a sufficient rational basis for both the Landmarks Commission's recommendation and the Town Board adopted such recommendation after a public hearing. Third, respondents argue that petitioners have failed to establish that there is no rational basis for the Town Board's determination and the Resolution is well supported by evidence in the record.

The scope of a judicial review of landmark designation by an authorized body is quite narrow. The court's review is "limited to whether 'the 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.'" (Save America's Clocks, Inc. v. City of New York, 33 NY3d 198, 207 [2019] [citing CPLR 7803[3]; Lutheran Church in Am. v. City of New York, 35 NY2d 121 [1974]]; see also Paloma Homes, Inc. v. Petrone, 10 AD3d 612 [2d Dept 2004]). '"[T]he courts cannot interfere unless there is no rational basis for the exercise of discretion' or 'the action is without sound basis in reason ... and taken without regard to the facts.'" (Save America's Clocks, 33 NY3d at 207 [citing Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of Society for Ethical Culture in City of NY v. Spatt, 68 AD2d 112, 116, 416 N.Y.S.2d 246 [1st Dept. 1979]]).

With regard to the timing of the Town Board's review of the Landmarks Commission's determination, Hempstead Town Code § 76-6 provides in relevant part:

B. In the event that the Commission decides to consider an application for designation, notice that an application is being considered shall be given by the Commission by certified mail, return receipt requested, to the owner of the parcel on which the proposed site is situated. Notice shall be given by certified mail, return receipt requested, to the owners of all property located within 200 feet of all exterior boundary lines of the subject parcel. All such owners shall have the right to confer with the commission prior to a final recommendation by the Commission.C. If the Commission disapproves the application, additional information may be submitted to the Commission within 10 working days after date of disapproval for further consideration. If the proposed landmark or landmark site shall be disapproved by the Commission, the proceeding shall terminate unless the Town Board calls a public hearing within 90 days of the date of disapproval pursuant to Subsection D of this section. No application shall be considered for the same project for a period of one year from the date of initial filing. The Commission's decision on the application shall be filed forthwith with the Town Board and shall be mailed by the Town Clerk to the owner and resident of the subject property and interested persons by certified mail, return receipt requested. If the Commission approves an application, the Town Board shall call a public hearing within 90 days of the date of the approval pursuant to Subsection D of this section. (Emphasis added).

Fundamentally, "[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the legislature." (Statutes § 92 [McKinney]). "Whether a given provision in a statute is mandatory or directory is to be determined primarily from the legislative intent gathered from the entire act and the surrounding circumstances, keeping in mind the public policy to be promoted and the results that would follow one or the other conclusion." (Statutes § 171 [McKinney]). "[T]he fact that a statute is framed in [*5]mandatory words such as 'shall' or 'must,' is of slight, if any, importance on the question whether the act is mandatory or directory." (Id.; see also Munro v. State of New York, 223 NY 208 [1918]). Rather, "[w]here the requirement of statute pertains to the essence and substance of the act to be performed, it cannot be disregarded as directory, and if the purpose of the statute cannot be effectuated by holding a certain provision to be directory, it must if it can consistently with the language be considered mandatory." (Statutes § 171 [McKinney]).

Where, however, "[p]rovisions . . . direct an officer to do an act at a certain time, though not making performance at that time essential, inserted merely to secure system, uniformity, and dispatch in the public business, [these] are generally held to be directory only, and a delay in performance or the neglect of such detail will not invalidate a proceeding under the statute or terminate jurisdiction, unless the statute says so in language or by an implication necessarily to be drawn from the statutory context." (Statutes § 172 [McKinney]). "This rule is followed particularly where the acts are to be done for the benefit of the public, or where there are no negative words in the statute forbidding the acts to be done at any other time." (Statutes § 172 [McKinney]). Accordingly, a time limitation statutorily imposed on agency action does not deprive the agency of authority to act unless it includes '"a specific consequence to flow from the administrative agency's failure to act' in violation of the time limit . . . ." (Matter of Maria PP v. Comm'r of NYS Off. Of Children & Family Servs., 162 AD3d 1297, 1298 [3d Dept 2018] [quoting Matter of Janus Petroleum v. New York State Tax Appeals Trib., 180 AD2d 53, 55 [3d Dept 1992]]; see also 400 Delaware Ave. Prop. Co. v. State Div. of Housing & Community Renewal, 105 AD2d 1046 [3d Dept 1984] ["[W]here the statute not only provides a time limit, but also a limitation on the authority of the agency to act after the time period, the limit will be viewed as mandatory."]; 121-129 Broadway Realty, Inc. v. New York State Div. of Human Rights, 43 AD2d 754, 754 [3d Dept. 1973]).

Significantly, the original provisions for Landmark Preservation in the Hempstead Town Code included the following declaration of purpose and policy: "The Town Board of the Town of Hempstead hereby finds: 1. There exists in the Town of Hempstead places, sites, structures and buildings of special historical significance or which, by reason of famous events, the antiquity or uniqueness of architectural construction and design, are of particular significance to the heritage of our town. 2. The conservation, protection and preservation of historic places, sites, structures and buildings are matters of public [i]nterest in harmony with the Comprehensive Town Plan to promote cultural education and to foster civic pride. 3. Accordingly, the Town Board hereby declares that the purpose of this chapter is to accomplish the conservation, protection and preservation of historical places, sites, structures and buildings." (See Editor's Note appended to Hempstead Town Code Chapter 76).

Contrary to petitioners' contentions, the legislative intent surrounding Chapter 76 was a balance of property rights against the public interest in the conservation, protection, and preservation of historical places. There is no basis to conclude that the 90-day directive "pertains to the essence and substance of the act to be performed." Indeed, the Town Code contains no time limit for the Landmarks Commission to act upon an application, regardless of the burden to the property, but requires only that it provide notice. Moreover, petitioner's assertion that "the Town Board could elect to hold a hearing on application where the Commission recommended disapproval months or years after the issuance of the disapproval recommendation, thus blind-siding the owner who justifiably relied upon the recommendation and the expiration of the 90-day clock" is incorrect. The effect of disapproval (termination of [*6]the application unless a public hearing is convened) and the effect of approval (further action by the Town Board) are expressly differentiated in the Town Code and carry different results. In sum, in the absence of a showing of actual, rather than some hypothetical prejudice, the court finds that the Town Board did not act without jurisdiction outside of the 90-day statutory window.

Turning to adoption of the Resolution itself, at the public hearing, Ms. Tarascio explained that the Theatre "is likely the last Art Deco movie theater left in the Town of Hempstead" and that "[d]esignation would protect the exterior of the Deco theater from insensitive renovations and preserve this example of a dwindling genre of buildings for hopefully many years to come." She recounted the development of Franklin Square and, "[i]n the middle of [it all] was the perfect place for a sleek, modern and up-to-date movie house, and that's exactly what Abraham H. Schwartz planned to construct. Schwartz has been building theaters since the turn of the 20th century and had prided himself on constructing theaters that were fireproof, had the newest equipment, and were completely modern in design and form." She continued:

In the 1930s he was working with an architect named R. Thomas Short who worked for James E. Ware & Sons. Short was known for designing large ornate apartment buildings in New York City such as Red House, Alwyn Court Apartments, the Studio Building, which is across the street from American Museum of History, and all of these including some of his other works are now designated New York City landmarks and are listed on the national register. The Franklin Theater ended up being slightly less grand than he wished for and Short had planned for having been constructed during the Depression. Despite the property being purchased and plans being made as early as 1925, the Franklin Theater did not open until October of 1933. Art Deco itself is part of the statement and modernity of projects in this style while pulling from traditional influences. While at first look it is unassuming, the architecture of the Franklin demonstrates typical small-scale modern Art Deco designs. [C]ommon among the genere in 1930 and common of other Art Deco buildings in the Town of Hempstead. The angles are streamlined with different brickwork which alternates in color and texture . . . .

Others confirmed that the Theatre is the last such Art Deco style movie house in the Town of Hempstead.

The Resolution was supported by a full hearing in which both live and written presentations were accepted from individuals qualified to speak on the issue of the historical significance of the Theatre's exterior. The record as a whole supports the conclusion that both the Landmarks Commission and the Town Board discharged their obligation to consider the "special character, ambiance, historical significance, aesthetic value, and uniqueness of architectural design" of the Theatre even without specific factual findings. (Cf. Paloma Homes, Inc. v. Petrone, 10 AD3d 612 [2d Dept 2004] [lack of specific findings of fact and absence of discussion of requisite considerations precluded intelligent judicial review of landmark determination where record was manifestly adequate]). Terse as the Resolution may be, it was supported by a substantial record. Further, in light of the record evidence, the possibility that Board members held preconceived personal opinions is insufficient to infer that the decision was arbitrary or capricious or without a rational basis.

For these reasons, it is hereby

ORDERED, that the petition for relief pursuant to CPLR Article 78, as set out in the first [*7]and third causes of action, is denied.

This constitutes the decision and order of this court. All applications not specifically addressed herein are denied.

Dated: Mineola, New York

June 9, 2020 Footnotes

Footnote 1:The second cause of action has been abandoned.