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Suit against St. Vincent's and New York City's Landmarks Preservation Commission that attempts to block the demolition of the historic O'Toole Building
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - x In the Matter of the Application of PROTECT THE VILLAGE HISTORIC DISTRICT, by Thomas E. Molner, Chair and Treasurer, HISTORIC DISTRICTS COUNCIL, DOCOMOMO NEW YORK-TRISTATE, THE HISTORIC NEIGHBORHOOD ENHANCEMENT ALLIANCE d/b/a Defenders of the Historic Upper East Side, LANDMARK WEST!, THE CAMBRIDGE OWNERS CORP, THE 175 WEST 12TH STREET CONDOMINIUM, THE JOHN ADAMS OWNERS, INC., THOMAS E. MOLNER, GARY A. TOMEI, TREVOR STEWART, CAROL GREITZER, IAN E. WISE, CRAIG E. RAIA, PHILIP H. SCHAEFFER, MAURICE B. ZUCKER, NAOMI USHER, DAVID R. MARCUS, VICTORIA B. LAMB, MARILYN DORATO, BARBARA H. DATESH, E. GERALD SALIMAN and LOGAN LUCHSINGER, Petitioners, Index No. For a Judgment Pursuant to Article 78 of the Civil Practice Law & Rules VERIFIED -against- PETITION NEW YORK CITY LANDMARKS PRESERVATION COM- MISSION, ROBERT TIERNEY as Chair of the New York City Landmarks Preservation Commission, THE CITY OF NEW YORK and ST. VINCENT’S CATHOLIC MEDICAL CENTERS, Respondents. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
Petitioners, by their attorneys, on information and belief, allege as follows:
NATURE OF CASE
1. This is a proceeding under CPLR Article 78 pursuant to which the petitioners
seek a judgment declaring illegal and setting aside a decision by the New York City Landmarks
Preservation Commission (“LPC”) under the City’s Landmarks Preservation and Historic
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Districts Law (the “Landmarks Law”). The decision, by a narrow 6-to-4 vote, authorized St.
Vincent’s Catholic Medical Centers (“St. Vincent’s”) to demolish the historic headquarters of the
National Maritime Union (now known as the O’Toole Building) in the Greenwich Village
Historic District on the claimed basis of constitutional “hardship.” Among other things, the
petitioners contend that the LPC misapprehended and misapplied the law, as articulated by the
United States Supreme Court in its historic decision that saved Grand Central Terminal, and
disregarded the mandates of the Landmarks Law. In addition, petitioners contend that because
St. Vincent’s acquired O’Toole Building AFTER the restrictions imposed by the Landmarks
Law were already in place, the Hospital could not have had “reasonable investment- backed
expectations” of the sort that would justify a constitutional exception to the otherwise proper and
lawful restrictions on an owner’s use of its property that are codified in the Landmarks Law.
Petitioners also challenge the majority’s finding that there were no alternatives to the demolition
that would adequately serve St. Vincent’s needs. In addition, petitioners assert that for different
reasons, the votes of two members of the LPC majority should be disqualified, and they
challenge the chaotic and irrational procedures followed by the Commission in reaching its
decision.
2. Petitioners seek a judgment and order pursuant to CPLR Article 78 for the
following relief:
(a) Declaring illegal and in violation of law the LPC’s decision authorizing/
approving the demolition of the O’Toole Building;
(b) Setting aside such approval and directing the LPC to conduct any further
proceedings in accordance with applicable law;
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(c) Enjoining St. Vincent’s and its agents from taking any actions or other
steps to further the demolition of the O’Toole Building;
(d) Awarding petitioners’ legal fees, costs and disbursements in this action; and
(e) Granting such further or other relief as the Court deems just and equitable.
THE PETITIONERS
3. Petitioner PROTECT THE VILLAGE HISTORIC DISTRICT (“PVHD”), a
project of the Citizen’s Action Program of Open Space Institute, a 501(c)(3) public charity, is an
unincorporated association composed primarily of Greenwich Village residents and home-
owners. PVHD was formed in January 2008 to oppose the threatened wholesale destruction of
many buildings of historic, cultural and architectural value in the Greenwich Village Historic
District, including, in particular, St. Vincent’s plan to demolish the O’Toole Building and
construct in its place a 300-foot high hospital tower totally out of keeping with the historic fabric
of the District. Since it was organized, PVHD has participated actively in the proceedings before
the LPC in which St. Vincent’s sought permission to demolish O’Toole and construct the new
tower. Among other things, PVHD presented oral testimony at the public hearings, submitted
written statements, researched potential alternative sites and, through its attorney, filed a number
of factual and legal memoranda with the LPC.
4. PVHD is governed by an 11-person Steering Committee and advised by a broader
community Strategy Group. Thomas Molner is the Chairman and Treasurer of the organization.
Since PVHD was formed, nearly 1,000 members have joined. Many, but not all, of these
members reside in Greenwich Village, and a significant number of them reside and/or own
property directly across from, or within a block of, the O’Toole Building and the site of the new
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tower. This includes several members of the Steering Committee and Strategy Group whose
homes or apartments have direct views to or on the O’Toole Building and the site of the
proposed new tower. These and many other members of PVHD will be significantly and
adversely affected by the actions herein complained of in the manner specified in paragraph 5
below.
Among other members of PVHD who are and/or will be impacted by LPC’s decision in a
substantive and qualitative way different from any impact on the general public are Petitioners
THOMAS E. MOLNER, GARY TOMEI, TREVOR STEWART, CAROL GREITZER, IAN E.
WISE, CRAIG E. RAIA, PHILIP H. SCHAEFFER, MAURICE B. ZUCKER, NAOMI USHER,
DAVID R. MARCUS, VICTORIA B. LAMB, MARILYN DORATO AND BARBARA
DATESH, whose facts are set forth infra.
5. PVHD and its members are directly and adversely affected by the illegal actions
herein complained of in a manner different from the general public in that such illegal actions
will: (a) destroy a historic building of great architectural merit that contributes significantly to
the Greenwich Village Historic District and the environment in which they reside; (b) impair the
views of the low-rise O’Toole Building that such members currently enjoy from their homes and
apartments, many of which are directly across the street from the site; (c) clear the way for the
construction of a 300-foot high rise tower on the site of the O’Toole Building, which tower will
overwhelm the low-rise environment of the West Village (a consideration that underlay the
decisions of many of them to acquire their homes) and also block the views of the City that such
members currently enjoy from their homes and apartments; (d) disrupt the neighborhood in
which they live during the eight years of demolition and new construction, burdening them with
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the resulting construction traffic, noise and pollution and rendering the streets far more
dangerous that they are today, (e) impose on such members the long term impacts of a totally
incompatible high-rise tower in a low-rise neighborhood, increased traffic congestion and
increased noise, and (f) diminish the value of their properties, including, in particular, the
properties of those members who live directly across from the site of the demolition and the
proposed new tower.
6. PVHD has standing to sue in that one or more of its members has standing to sue,
the interests it advances here are sufficiently germane to PVHD’s purposes to make PVHD an
appropriate representative of those interests; and the participation of each of the individual
PVHD members is not required to assert this claim or to afford complete relief.
7. Petitioner HISTORIC DISTRICTS COUNCIL (“HDC”) is a New York not-for-
profit 501(c)(3) corporation originally founded in 1971 and later incorporated in 1986. HDC is
the citywide advocate for New York City’s designated historic districts (including the Greenwich
Village Historic District) and individual landmarks and for neighborhoods and buildings that
merit preservation. HDC is dedicated to protecting the integrity of the New York Landmarks
Law and to furthering the preservation ethic. HDC, which is governed by a 26-member board of
directors, has approximately 700 supporting contributors (know as “Friends of HDC”) from
across the City, including a significant number who live or work in, or in close proximity to, the
Greenwich Village Historic District, St. Vincent’s and/or the O’Toole Building. As part of its
regular programs, HDC, through an expert committee of Directors working in conjunction with
affected neighbors, reviews all proposals brought before the LPC for public permit applications
and comments for the public record when warranted. HDC and its Friends are directly and
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adversely affected by the illegal actions herein complained of in a manner different from the
general public in that such illegal actions will: (a) diminish the ability of the LPC to effectively
protect designated historic districts throughout the city by setting a precedent whereby certain
projects could become exempt from the oversight of the Landmarks Law, b) undermine the basic
assurances of environmental continuity upon which rest the rewards of landmark protection, and
(c) destroy a historic building of great architectural merit that (i) contributes significantly to the
Greenwich Village Historic District, which it is HDC’s mission to help protect, and (ii) is an
essential element of the environment in which a number of HDC Friends and directors reside.
HDC has standing to sue in that one or more of its Friends or Directors has standing to sue, the
interests it advances here are sufficiently germane to HDC’s purposes to make HDC an
appropriate representative of those interests; and the participation of each of the individual HDC
Friends or Directors is not required to assert this claim or to afford complete relief.
8. Petitioner DOCOMOMO NEW YORK/TRI-STATE is the New York/Tri-state
chapter of DOCOMOMO US, and International, an international not-for-profit organization that
promotes the study, interpretation, and protection of modern architecture, landscape, and urban
design. DOCOMOMO New York/Tri-State works on preservation advocacy, publishes a
biannual newsletter, conducts research on Modernist buildings and holds events and educational
activities and programs for members and others interested in modern architecture and design.
Formed in 1995, and incorporated as a 501(c)(3) organization in 2006, DOCOMOMO New
York/Tri-state has approximately 200 members and volunteers, including a number who live or
work in Greenwich Village. In recent years, the group has focused attention on such Modernist
buildings as Skidmore, Owings & Merrill’s Chase Manhattan Bank, Eero Saarinen’s Bell
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Laboratories in New Jersey, I. M. Pei’s Kips Bay Plaza and Silver Towers, Eero Sarinen’s TWA
Terminal and, in the last year, Albert Ledner’s Curran/O’Toole Building. The chapter
participated actively in the recent LPC proceedings involving the fate of that building, submitted
testimony in opposition to its demolition and a detailed report on its architecture and history.
The group and its members are directly and adversely affected by the illegal actions herein
complained of in a manner different from the general public in that such illegal actions will
destroy a historic modern building that (a) is an important structure of that period which it is
DOCOMOMO New York-Tristate’s mission to preserve, (b) contributes significantly to the
understanding of the period, and (c) is an essential element of the environment of the Greenwich
Village Historic District, in which a number of DOCOMOMO New York-Tristate members
work or reside. DOCOMOMO New York-Tristate has standing to sue in that one or more of its
members has standing to sue, the interests it advances here are sufficiently germane to
DOCOMOMO New York-Tristate’s purposes to make it an appropriate representative of those
interests; and the participation of each of the individual DOCOMOMO New York-Tristate
members is not required.
9. Petitioner THE HISTORIC NEIGHBORHOOD ENHANCEMENT ALLIANCE
d/b/a Defenders of the Historic Upper East Side (“Defenders”) is New York not-for-profit
corporation with Section 501(c)(3) tax exempt status. It was organized in 1997 and has as its
mission to enhance and protect historic neighborhoods in Manhattan and to foster, promote and
develop public awareness of Manhattan’s historic neighborhoods. Defenders focuses
particularly on the Upper East Side where it acts to defend the historic character of the area’s
architecture and improve the appearance of its streets and avenues. Defenders, which has more
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than 150 individual members, and the members themselves are significantly and adversely
affected by the actions complained of herein in that the decision of the LPC allowing the
demolition of the O’Toole Building, if sustained, will set a precedent equally applicable on the
Upper East Side and thus puts in jeopardy the historic setting in which they live and the historic
structures that enrich their environment, all in a manner different from that of the general public.
10. Petitioner LANDMARK WEST! is a New York not-for-profit corporation with
Section 501(c)(3) tax exempt status. Incorporated in 1985, its mission is to preserve the best of
the Upper West Side’s architectural heritage from 59th to 110th Streets between Central Park
West and Riverside Drive. Since it was formed, Landmark West! has played a major role in
increasing the area’s designated landmarks from 337 to more than 2,600; it has continuously
promoted awareness of the architectural treasures and the need to protect them; and it has
actively participated in many proceedings before the LPC, as well as initiating a number of
lawsuits challenging the actions (or inaction) of the Commission. Landmarks West!, which has
more than 2,000 contributing members, and these members, are significantly and adversely
affected by the actions herein in that the decision of the LPC allowing the demolition of the
O’Toole Building, if sustained, will set a precedent equally applicable on the Upper West Side
and thus puts in jeopardy the historic setting in which they live and the historic structures that
enrich their environment, all in a manner different from that of the general public.
11. Petitioner THE CAMBRIDGE OWNERS CORP. (“Cambridge”) is a New York
cooperative corporation that owns the land and building located at 175 West 13th Street. The
building extends along Seventh Avenue from 13th Street north approximately one-half block
towards 14th Street. This is across Seventh Avenue and less than 150 feet from the O’Toole
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Building, which extends from West 12th Street to West 13th Street along Seventh Avenue. The
Cambridge has 137 apartments and cooperative owners, a large number of whom have direct
views of the low-rise O’Toole Building and others of whom enjoy expansive views south over
Greenwich Village due to the low-rise configuration of the O’Toole Building. Trevor Stewart is
President of the Cambridge. The Cambridge and its residents and owners are and will be directly
and adversely affected by: (i) the demolition of the O'Toole Building, which is an integral part of
the historic fabric of West 12th Street and the environment in which the residents of the Cam-
bridge live; (ii) the construction of the new hospital tower, which will be incompatible with and
compromise the low-rise fabric of the Greenwich Village Historic District, which is one of the
principal reasons many residents chose this location, (iii) the disruption of the neighborhood and
the areas immediately surround the Cambridge during the eight-year demolition and construction
period, and (iv) the long-term impact of increased noise, dirt, dust, fumes from demolition and
construction vehicles, and traffic congestion, all of which will impair the quality of their
environment and diminish the value of the Cambridge and the cooperators' apartments; and by
reason of its proximity of their residences to the demolition and construction sites, the loss of the
O'Toole Building and the commotion of construction for many years, the Cambridge and its
residents are and will be affected in a manner significantly different from that of the general
public.
12. Petitioner THE 175 WEST 12TH STREET CONDOMINIUM (“175 West 12th“) is
a condominium corporation located at 175 West 12th Street. The condominium building extends
along the east side of Seventh Avenue between 12th and 13th Streets. This is directly across
Seventh Avenue and only 100 feet from the O’Toole Building, which extends along the west side
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of the Avenue from 12th to 13th Streets. 175 West 12th contains 214 separately owned
apartments, almost half of which have direct views of the low-rise O’Toole Building and others
of which enjoy expansive views south and west over Greenwich Village due to the low rise
configuration of the O’Toole Building. Craig J. Raia is President of the condominium board.
175 West 12th Street and the apartment owners in the building are and will be directly and
adversely affected by: (i) the demolition of the O'Toole Building, which is an integral part of the
historic fabric of West 12th Street and the environment in which the residents of the building
live; (ii) the construction of the new hospital tower, which will be incompatible with and
compromise the low-rise fabric of the Greenwich Village Historic District, which is one of the
principal reasons many residents chose this location, (iii) the disruption of the neighborhood and
the areas immediately surrounding 175 West 12th Street during the eight year demolition and
construction period, and (iv) the long-term impact of increased noise, dirt, dust, fumes from
demolition and construction vehicles, and traffic congestion, all of which will impair the quality
of their environment and diminish the value of the building and the apartments of the
condominium owners; and by reason of its proximity of their residences to the demolition and
construction sites, the loss of the O'Toole Building and the commotion of construction for many
years, 175 West 12th Street and its residents are and will be affected in a manner significantly
different from that of the general public.
13. Petitioner THE JOHN ADAMS OWNERS, INC. (hereinafter, the "John Adams"
or "Building") is a cooperative corporation which owns the land and building at 101 West 12th
Street, New York, NY. The Building extends from West 12th Street to West 13th Street along
the Avenue of the Americas in the block between that Avenue and Seventh Avenue. This is a
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block away from the O'Toole Building, which extends from West 12th Street to West 13th Street
along Seventh Avenue, and less than 200 feet from St. Vincent's Reiss Building, which is also
proposed for demolition under the St. Vincent’s plan. The John Adams has more than 350
apartments and cooperative owners, some of whom have direct views of the low O'Toole
Building, many of whom have views of the East Campus and the Reiss Building, and even more
of whom would have views of the tower that is proposed to replace the demolished O’Toole
Building. Frank V. Saracino is President of the Building. The John Adams and its residents and
owners are and will be directly and adversely affected by: (i) the demolition of the O'Toole
Building, which is an integral part of the historic fabric of West 12th Street and the environment
in which the residents of the Building live; (ii) the construction of the new hospital tower, which
will be incompatible with and compromise the low-rise fabric of the Greenwich Village Historic
District, in which the John Adams is located, (iii) the demolition of the Reiss Building and
subsequent construction of a condominium structure to replace it, (iv) the disruption of the
neighborhood and the 12th Street block on which the Building stands and its tenant-shareholders
reside during the eight-year construction period; and (v) the long-term impact of increased noise,
dirt, dust, fumes from demolition and construction vehicles, and traffic congestion, all of which
will impair the quality of their environment and diminish the value of the Building and the
cooperators' apartments; and by reason of its proximity of their residences to the demolition and
construction sites, the loss of the O'Toole Building and the commotion of construction for many
years, the John Adams and its residents are and will be affected in a manner significantly
different from that of the general public.
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14. Petitioner THOMAS E. MOLNER resides at 217 West 13th Street, New York,
New York, between Seventh and Eight Avenues. This is a four-story brownstone residence
which Mr. Molner acquired in 1999 and owns with his partner. It stands less than 200 feet to the
northwest of and has direct views to the O’Toole Building, which, under the decision herein
complained of, would be demolished to make way for a new 300-foot high hospital tower. Mr.
Molner, who is also the Chair and Treasurer of PVHD, is and will be directly and adversely
affected by the actions herein complained of as a result of (i) the loss of the O’Toole Building,
which is an integral part of the historic fabric which surrounds his home; (ii) the loss of the low-
rise character of the historic neighborhood in which he lives, (iii) construction of the new
hospital tower, which will not only block his light and air but also overwhelm his four-story
residence and result in a structure incompatible with the low rise character of the neighborhood,
(iv) the disruption of the neighborhood and the 13th Street block on which he lives during the
eight-year construction period, (v) and the long term impact of increased noise and traffic
congestion, all of which will impair the quality of his environment and diminish the value of his
home; and by reason of the proximity of his residence, the loss of O’Toole Building and the
commotion of construction for many years directly across the street, Mr. Molner is and will be
affected in a manner significantly different from that of the general public.
15. Petitioner GARY A TOMEI resides at 155 West 13th Street, New York, New
York, between Sixth and Seventh Avenues. This is a four story, 160-year old brownstone
residence which Mr. Tomei acquired in 1994 and owns with his wife. It stands less than 250 feet
to the east of the O’Toole Building, which is clearly visible from the parlor floor and two floors
13
above it, and the new tower, if constructed, will be far more visible, looming over the residence.
Mr. Tomei, who is also a Vice Chair of PVHD, is and will be directly and adversely affected by
the actions herein complained of as a result of (i) the loss of the O’Toole Building, which is an
integral part of the historic fabric which surrounds his home; (ii) the loss of the low-rise
character of the historic neighborhood in which he lives, (iii) construction of the new hospital
tower, which will result in a structure incompatible with the low rise character of the neighbor-
hood and will overwhelm his four-story residence, (iv) the disruption of the neighborhood and
the 13th Street block on which he lives during the eight-year construction period, (v) damage to
the structural integrity of the residence due to heavy construction work and truck traffic, and (vi)
the long term impact of increased noise and traffic congestion, all of which will impair the
quality of his environment and diminish the value of his home; and by reason of the proximity of
his residence, the loss of the O’Toole Building and the commotion of construction for many
years directly across the street, Mr. Tomei is and will be affected in a manner significantly
different from that of the general public.
16. Petitioner TREVOR STEWART resides with his wife Margaret Stewart at 175
West 13th Street, New York, New York, on the northeast corner of the intersection of Seventh
Avenue and 13th Street, diagonally across from the O’Toole Building. The Stewarts own and
occupy adjoined Apartments 19A, 19B and 19D in this 20-story coop building, where they have
lived since 1982, and which they bought because of the light, air and unobstructed view across a
landmarked area. Mr. Stewart is also president of the coop. From his apartment, Mr. Stewart has
a direct view down on the O’Toole Building, which, under the decision herein complained of,
would be demolished to make way for a new 300-foot high hospital tower that would block what
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are now open views to the southwest. Mr. Stewart, who is also a member of the Steering
Committee of PVHD, is and will be directly and adversely affected by the actions herein
complained of as a result of (i) the loss of the O’Toole Building, which is an integral part of the
historic fabric which surrounds his home and, as a low rise structure, creates the light and air and
uninterrupted views that he enjoys; (ii) the loss of the low-rise character of the historic
neighborhood in which he lives, (iii) construction of the new hospital tower, which will be
incompatible with the low-rise character of the neighborhood and block his views over the low-
rise Village, (iv) the disruption of the neighborhood and the 13th Street block on which he lives
during the eight-year construction period, (v) and the long term impact of increased noise and
traffic congestion, all of which will impair the quality of his environment and diminish the value
of his apartment; and by reason of the proximity of his residence, the loss of the O’Toole
Building and the commotion of construction for many years directly across the street, Mr.
Stewart is and will be affected in a manner significantly different from that of the general public.
17. Petitioner CAROL GREITZER resides with her husband in a condominium they
own at 59 West 12th Street, New York, New York, between Fifth and Sixth Avenues, a block and
a half from the site of the O’Toole Building. Ms. Greitzer has lived in Greenwich Village for
more than 50 years and served as an elected representative for the area for 30 years, first as
Democratic District Leader and then as Council Member. In that capacity, she was active in the
successful campaign to secure historic district designation for Greenwich Village in 1969.
Currently, Ms. Greitzer is Co-Chair of the West 12th Street Block Association, which extends
from Fifth to Seventh Avenues, ending directly opposite the O’Toole Building. Ms. Greitzer,
who is also a member of PVHD’s Steering Committee, is and will be significantly and adversely
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affected by the actions herein complained of due to (i) the loss of the historic O’Toole Building,
which is an integral part of the 12th Street environment, (ii) the loss of the low-rise character of
the neighborhood in which she lives, (iii) construction of the new hospital tower, which will
overwhelm the low-rise buildings that typify Greenwich Village, (iv) the precedent that will be
set for the destruction of landmarks owned by charities if the action is implemented, (v) the
disruption of the neighborhood and the 12th Street block during the eight-year construction
period, and (iv) the long term impact of increased noise and traffic congestion, which will impair
the quality of her environment and diminish the value of her apartment; and by reason of her
proximity and her role as Co-Chair of the Block Association, she will be affected in a manner
significantly different from that of the general public.
18. Petitioner IAN E. WISE resides at 175 West 12th Street, New York, New York,
between Sixth and Seventh Avenues. Mr. Wise owns and occupies Apartments 19D and E,
which Mr Wise acquired in 1992 and owns with his partner. This 20-story condominium
building, which extends along Seventh Avenue from 12th Street almost to 13th Street, stands
immediately across Seventh Avenue from the O’Toole Building, and from every room of his
apartments, Mr. Wise has a direct view down on that Building, which, under the decision herein
complained of, would be demolished to make way for a new 300-foot high hospital tower that
would block what are now open views to the west. Mr. Wise, who is a member of PVHD, is and
will be directly and adversely affected by the actions herein complained of as a result of (i) the
loss of the O’Toole Building, which is an integral part of the historic fabric which surrounds his
home and, as a low-rise structure, creates the light and air and uninterrupted views that he
enjoys; (ii) the loss of the low-rise character of the historic neighborhood in which he lives, (iii)
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construction of the new hospital tower, which will be incompatible with the low-rise character of
the neighborhood and block his views over the low-rise Village, (iv) the disruption of the
neighborhood and the 12th Street block on which he lives during the eight-year construction
period, (v) and the long term impact of increased noise and traffic congestion, all of which will
impair the quality of his environment and diminish the value of his apartment; and by reason of
the proximity of his residence, the loss of the O’Toole Building and the commotion of
construction for many years directly across the street, Mr. Wise is and will be affected in a
manner significantly different from that of the general public.
19. Petitioner CRAIG J. RAIA resides at 175 West 12th Street, New York, New
York, between Sixth and Seventh Avenues. Mr. Raia occupies Apartment 15F, which he
acquired in 1988 and owns with his partner, Gerald J. Dieffenbach, Jr, and he and has partner
both live and work in the apartment. 175 West 12th Street is a 20-story condominium building,
which extends along Seventh Avenue from 12th Street almost to 13th Street and stands
immediately across Seventh Avenue from the O’Toole Building. From his apartment, Mr. Raia
has a direct view down on that Building, and he and his partner bought the property because of
the light and air and views over the Village that the low-rise O’Toole Building allows. Mr. Raia
is also President of the condominium board of 175 West 12th Street and is a member of the
PVHD Strategy Group. Mr. Raia is and will be directly and adversely affected by the actions
herein complained of as a result of (i) the loss of the O’Toole Building, which is an integral part
of the historic fabric which surrounds his home and, as a low rise structure, creates the light and
air and uninterrupted views that he enjoys; (ii) the loss of the low-rise character of the historic
neighborhood in which he lives, (iii) construction of the new hospital tower, which will be
17
incompatible with the low rise character of the neighborhood and block his views over the low-
rise Village, (iv) the disruption of the neighborhood and the 12th Street block on which he lives
during the eight-year construction period, which will result in extreme economic hardship to both
Mr. Raia and Mr. Dieffenbach because they work at home and the noise, in particular, will make
it difficult, if not impossible, for them to continue to do so, and (v) the long term impact of
increased noise and traffic congestion, all of which will impair the quality of his environment
and diminish the value of his apartment; and by reason of the proximity of his residence, the loss
of the O’Toole Building and the commotion of construction for many years directly across the
street, Mr. Raia is and will be affected in a manner significantly different from that of the general
public.
20. Petitioner PHILIP H. SCHAEFFER resides at 144 West 11th Street, New York,
New York, between Sixth and Seventh Avenues. This is an 1850’s brownstone residence which
Mr. Schaeffer owns as a trustee and occupies with his wife, his daughter and son-in-law, and two
grandchildren, ages 4 and 7. It stands directly across 11th Street from the Cronin Building, which
is a part of St. Vincent’s hospital complex that under the St. Vincent’s overall plan would be
razed and replaced with new condominium units. The residence is approximately 500 feet from
the O’Toole Building and the site of the proposed hospital tower. Mr. Schaeffer, who is also a
member of the PVHD Steering Committee, is and will be directly and adversely affected by the
actions herein complained of as a result of (i) the loss of the O’Toole Building, which is an
integral part of the historic fabric which surrounds his home, (ii) the loss of the low-rise
character of the historic neighborhood in which he lives, (iii) the demolition of the Cronin
Building and the construction of new condominiums directly across from his residence, (iv) the
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disruption of the neighborhood and the 11th Street block on which he lives during the eight-year
construction period, (v) damage to the structural integrity of the residence due to heavy
construction work and truck traffic, and (vi) the long term impact of increased noise and traffic
congestion, all of which will impair the quality of his environment and diminish the value of his
home; and by reason of the proximity of his residence, the loss of the O’Toole Building and the
commotion of construction for many years directly across the street, Mr. Schaeffer will be
affected in a manner significantly different from that of the general public.
21. Petitioner MAURICE B. ZUCKER resides at 175 West 12th Street, New York,
New York 10011, a 20 story condominium that occupies most of Seventh Avenue between West
12th and 13th Streets. Mr. Zucker with his partner, Lawrence S. Birns, owns and occupies
Apartment 10G, which they acquired in 1992. 175 West 12th Street stands immediately across
Seventh Avenue from the O’Toole Building, and from his apartment, Mr. Zucker looks across to
that Building. The windows in the apartment are on the approximate level of the mechanicals
atop the O’Toole roof, but the current views extend above and beyond the Building, filling the
apartment with western light. The light and generally low skyline was a decisive factor in the
decision by Mr. Zucker and Mr. Birns to purchase the apartment. Mr. Zucker, who is 76 years
old, and Mr. Birns, who is 73, purchased the apartment 17 years ago (after living in the Village
the previous 27 years) and did so believing it would be their final residence, but that is now in
doubt. Mr. Zucker, who is also secretary of the condominium board, is and will be severely and
adversely affected by the actions herein completed of due to (i) the loss of the light and low
density that defines the historic, landmarked neighborhood in which he lives; (ii) the loss of
Albert Ledner’s historically and architecturally significant O’Toole Building, which is an
19
integral and important part of the environment that surrounds him, (iii) its replacement with a
300 foot high tower that will be totally incompatible with the low -rise character of the
neighborhood and will block his view of that neighborhood, (iv) the noise and environmental
pollution generated by eight years of demolition and construction in a relatively confined area,
and (v) the diminution of the value of the apartment; and by reason of the proximity of his
residence and the commotion of construction for many years directly across the street, Mr.
Zucker is and will be affected in a manner significantly different from that of the general public.
22. Petitioner NAOMI USHER resides with her husband and two children, ages 7 and
9, at 132 West 13th Street, New York, New York, half a block from the O’Toole Building. The
Ushers own and occupy the upper duplex of this brownstone condominium, where they have
lived since 2001, and which they bought because of the low height/low density/community
feeling of this landmarked area. Ms. Usher, who is also a member of the Steering Committee of
PVHD, and her family are and will be, directly and adversely affected by (i) the loss of the
O’Toole Building, which is an integral part of the historic fabric which surrounds their home; (ii)
the construction of the new hospital tower, which will overwhelm the low rise character of the
neighborhood, (iii) the disruption of the neighborhood and the 13th Street block (on which they
live and where the children play) during the eight-year construction period, (iv) the long term
impact of increased noise and traffic congestion, which will impair the quality of their
environment and diminish the value of their apartment; (v) the long term impact of increased
density especially as it relates to her children and their schools, and (vi) the potential damage to
the 160 year old structure where she lives. Ms. Usher and her family are and will be affected in a
manner significantly different from that of the general public.
20
23. Petitioner DAVID R. MARCUS resides with his wife Barbara at 175 West 13th
Street, New York, New York, on the northeast corner of the intersection of Seventh Avenue and
13th Street, diagonally across from the O’Toole Building. The Marcuses own and occupy
conjoined Apartments 5D and 5E in this 20-story coop building, where they have lived since
1988, and which they bought because of the light and air it offered and knowing that the vista
was landmark protected. Mr. Marcus is also Vice President Finance and past President of the
coop. From his apartment, Mr. Marcus has a direct view across to the O’Toole Building, the
roof of which is slightly below the level of his windows, in which he maintains a veritable indoor
garden that thrives because the light and air are not blocked by a tall building. This will
disappear if the action complained of is implemented. Mr. Marcus, who is also a member of the
Strategy Group of PVHD, is and will be directly and adversely affected by the actions herein
complained of as a result of (i) the loss of the O’Toole Building, which is an integral part of the
historic fabric which surrounds his home and, as a low rise structure, creates the light and air that
he enjoys; (ii) the loss of the low-rise character of the historic neighborhood in which he lives,
(iii) construction of the new hospital tower, which will be incompatible with the low-rise
character of the neighborhood and will block his view to the southwest over that neighborhood,
(iv) the disruption of the neighborhood and the 13th Street block on which he lives during the
eight-year construction period, (v) and the long term impact of increased noise and traffic
congestion, all of which will impair the quality of his environment and diminish the value of his
apartment; and by reason of the proximity of his residence, the loss of the O’Toole Building and
the commotion of construction for many years directly across the street, Mr. Marcus is and will
be affected in a manner significantly different from that of the general public.
21
24. Petitioner VICTORIA B. LAMB resides at 117 West 13th Street, New York, New
York, between Sixth and Seventh Avenues. Ms. Lamb and her husband, Richard Merz, rent and
have occupied apartment 44 in this 6-story apartment building since 1994. Ms. Lamb and Mr.
Merz have been neighborhood residents for 20 and 38 years, respectively, having come to the
area because of its historic fabric, low-lying buildings, community energy and the stability
provided by the protection and envelopment of the area within the Greenwich Village Historic
District. Their building stands just past midway east of Seventh Avenue from the O’Toole
Building, which, under the decision herein complained of, would be demolished to make way for
a new 300-foot high hospital tower that would block what are now open views and sunlight to
the west. Ms. Lamb, who is also a member of PVHD and its Strategy Group, is and will be
directly, materially and adversely affected by (i) the loss of the O’Toole Building, which is an
integral part of the historic fabric which surrounds her home; (ii) the construction of the new
hospital tower, which will block light and air, diminishing plantings and darkening the street;
(iii) the disruption of the neighborhood and the 13th Street block which is now recovering from
years of construction from the installation of three-story fans servicing the Hudson Tunnels, (iv)
and the long term impact of increased noise and traffic congestion, all of which will permanently
impair the quality of her environment; and by reason of the proximity of her residence, the loss
of the O’Toole Building and the commotion of construction for many years on West 13th Street,
Ms. Lamb is and will be affected in a manner significantly different from that of the general
public.
25. Petitioner MARILYN DORATO resides at 20 Bank Street, New York, New
York, between Greenwich Avenue and Bleecker Street. This is a four story brownstone which
22
Ms. Dorato acquired in 1976 and owns with her husband, Dr. Charles Dorato. The building
stands approximately 350 feet to the southwest of the O'Toole Building. Ms Dorato, who is a
member of PVHD’s Steering Committee, is also President of the Waverly Bank 11 Neighbors
Block Association and Executive Director of the Greenwich Village Block Associations. She
has been active in the community for many years, focusing particularly on the history and
architectural heritage of Greenwich Village. She is Co-Chair of the Friends of the Jefferson
Market Library Bell (which installed a striking mechanism in the Library's Bell), spearheaded
the campaign to install large plaques on the two Village firehouses commemorating the Village
firemen lost on September 11, 2001 and was instrumental in creating the project to install
Bishop's Crook Lights on Village streets to enhance the ambiance of the Village. Ms. Dorato
will be directly and adversely affected by the actions herein complained of by reason of (i) the
loss of the O'Toole Building, which is an integral part of the historic fabric which surrounds her
home, (ii) the construction of the new hospital tower, which will create shadows on Bank Street
and overwhelm the low rise character of the Historic District and the neighborhood in which she
lives, (iii) the disruption of the neighborhood and the Bank Street block on which he lives during
the eight-year construction period, (iv) and the long term impact of increased noise and traffic
congestion, all of which will impair the quality of her environment and diminish the value of her
home; and by reason of the proximity of her residence, the loss of the low-rise character of the
neighborhood and the commotion of construction for many years directly across the street, Ms.
Dorato is and will be affected in a manner significantly different from that of the general public.
26. Petitioner BARBARA H. DATESH resides with her husband, Stephen Z. Kraus,
at 247 Waverly Place, New York, New York, between Bank and West 11th Streets. This is a four
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story brownstone residence in a neighborhood of low rise brownstones, which Ms. Datesh
acquired in 1974. It stands approximately 300 feet to the south of the O’Toole Building, which
is clearly visible from the rear of the house, and the new tower, if constructed, will be far more
visible, looming over the residence. Ms. Datesh, who is a member of PVHD, is and will be
directly and adversely affected by the actions herein complained of as a result of (i) the loss of
the O’Toole Building, which is an integral part of the historic fabric which surrounds her home;
(ii) the loss of the low-rise character of the historic neighborhood in which she lives, (iii)
construction of the new hospital tower, which will result in a structure incompatible with the
low-rise character of the neighborhood and will overwhelm her four-story residence, (iv) the
disruption of the neighborhood during the eight-year construction period, (v) potential damage to
the structural integrity of the residence due to heavy construction work and truck traffic, and (vi)
the long term impact of increased noise and traffic congestion, all of which will impair the
quality of her environment and diminish the value of her home; and by reason of the proximity
of her residence, the loss of the O’Toole Building and the commotion of construction for many
years within 300 feet of her residence, Ms. Datesh is and will be affected in a manner
significantly different from that of the general public.
27. Petitioner S. GERALD SALIMAN resides in a cooperative apartment at 101 West
12th Street, New York, New York, between Sixth and Seventh Avenues. Mr. Saliman and his
partner acquired the apartment in 1995. The building, The John Adams, is a 21-floor white brick
building that stands about 700 feet from the O’Toole building and fewer than 300 feet to the
north and east of the St. Vincent’s hospital buildings, one or more of which would be demolished
under the St. Vincent’s plans. Mr. Saliman, who served as president of the building from 2002
24
through 2007, is and will be directly and adversely affected by: (i) the demolition of the O’Toole
Building and one or more of the hospital buildings, which are an integral part of the historic
fabric of his block on West 12th Street; (ii) the disruption of the neighborhood and the 12th
Street block on which he lives during the eight-year construction period; and (iii) the long-term
impact of increased noise, dirt, dust, fumes from demolition and construction vehicles, and
traffic congestion, all of which will impair the quality of his environment and diminish the value
of his home; and by reason of the proximity of his residence to the demolition and construction
sites and the commotion of construction for many years directly across the street, Mr. Saliman is
and will be affected in a manner significantly different from that of the general public.
28. Petitioner LOGAN LUCHSINGER resides at 79 Greenwich Avenue, New York,
New York, between Bank Street and Seventh Avenue, in Apartment 2F. This is a rental and
rent-stabilized apartment in a three story building that stands 300 feet south of the O’Toole
Building. Mr. Luchsinger, who is a free-lance television producer and works at home, has direct
views to the O’Toole Building from all the windows of his apartment, which looks north across
Greenwich Avenue. Mr. Luchsinger is and will be directly and adversely affected by the actions
herein complained of as a result of (i) the loss of the O’Toole Building, which is an integral part
of the historic fabric which surrounds his residence; (ii) the loss of the low-rise character of the
historic neighborhood in which he lives, (iii) construction of the new hospital tower, which will
result in a structure incompatible with the low rise character of the neighborhood and will over-
whelm the building in which he lives, (iv) the disruption of the neighborhood during the eight-
year construction period, which will make it difficult, if not impossible, for him to carry on his
business in his home, (v) potential damage to the structural integrity of the residence due to
25
heavy construction work and truck traffic, and (vi) the long term impact of increased noise and
traffic congestion, all of which will impair the quality of his environment and his home; and by
reason of the proximity of his residence, the loss of the O’Toole Building and the commotion of
construction for many years within 300 feet of his residence, Mr. Luchsinger is and will be
affected in a manner significantly different from that of the general public.
THE RESPONDENTS
29. Respondent NEW YORK CITY LANDMARKS PRESERVATION
COMMISSION (hereafter referred to as the “LPC” or “Commission”) is an agency within the
government of the City of New York, having the responsibility for, among other things,
designating landmarks and historic districts, authorizing (or rejecting) alterations to and
demolition of such landmarks and structures within historic districts, passing judgment on
hardship applications and, in general, implementing and enforcing the New York City Land-
marks Law [Landmarks Preservation and Historic Districts Law, Title 25, Ch 3, §§25-301 to 25-
322 of the Administrative Code of the City of New York.] pursuant to which the LPC was created
and by which it is bound. In the instant case, the LPC was responsible for passing judgment on
applications for certificates of appropriateness and, subsequently, for a hardship exception to
demolish the O’Toole Building and construct a new hospital tower and condominium
development. The principal office of the LPC is in the Municipal Building at 1 Centre Street,
9th Floor, New York, New York 10007.
30. Respondent ROBERT J. TIERNEY is, and at all times herein complained of was,
Chairman of the LPC. Mr. Tierney, who resides in a cooperative apartment at 125 West 12th
Street between Sixth and Seventh Avenues, is sued in his official capacity.
26
31. Respondent CITY OF NEW YORK (the “City”) is a municipal corporation
organized under the New York General City Law. The LPC is an agency (and agent) of the City
in the area of historic preservation.
32. Respondent ST VINCENT’S CATHOLIC MEDICAL CENTERS (hereinafter,
“St Vincent’s” or the “Hospital”) is a New York not-for-profit corporation with its principal
facilities and main office located in the Borough of Manhattan. St. Vincent’s is the owner of the
O’Toole Building, as well as eight hospital buildings on the east side of Seventh Avenue
between 11th and 12th Streets (the “East Campus”). St. Vincent’s was the applicant before the
LPC in connection with the application to demolish the O’Toole Building and is the applicant for
a certificate of appropriateness to build a high rise hospital tower on the O’Toole site. St.
Vincent’s is joined as a respondent because of its ownership interest in that site and to ensure
that complete relief can be afforded in this action.
BACKGROUND
33. The New York City Landmarks Law was enacted in 1965. As noted on the LPC’s
website, the Law was passed “in response to New Yorkers’ growing concern that important
physical elements of the City’s history were being lost despite the fact that these buildings could
be reused.” The Law created the LPC and empowered it to designate both individual landmarks
and historic districts in order to, among other things, “safeguard the city's historic, aesthetic, and
cultural heritage [and] help stabilize and improve property values in historic districts.” Under
the Law, landmarked structures and buildings within historic districts cannot be altered or
demolished unless the LPC grants its approval.
27
34. In 1964, a year before the Landmarks Law was passed, the National Maritime
Union completed a new national headquarters combined with its New York hiring halls. This
building, which later became known as the O’Toole Building, was dedicated as the Joseph P.
Curran Building in honor of the Union’s long-time leader and then President. The building,
located on Seventh Avenue between 12th and 13th Streets, had been designed by Albert Ledner, a
student of Frank Lloyd Wright, and was very much influenced by Wright’s aesthetic. It was
built in a cantilevered style which, like the Guggenheim and Whitney Museums, marked a sharp
break with the glass-box architecture then in vogue. Its façade was characterized by porthole-
like openings, which could also be seen as waves – in either case, reflecting its maritime theme.
And it was set on a translucent glass block base that gave it a sense of floating above the ground.
When the Curran Building was dedicated, it was singled out by Ada Lou Huxtable, then the
architectural critic for The New York Times, for its audacity in breaking with the international
style and in its effort to reflect the maritime activities that it housed. An image of the Building,
along with the Ms. Huxtable’s article and the Dedication Program, is included as Exhibit A in the
accompanying Exhibit Binder.
35. Following passage of the Landmarks Law in 1965, the LPC landmarked a large
number of individual buildings and began the process of designating historic districts. While
Greenwich Village was an obvious candidate, there was a complexity of competing interests,
with efforts made to limit the geographical scope of the designation and exclude particular
buildings as not being worthy of protection. In part as a result, it took four years, expansive
studies and a good deal of political wrangling before the Greenwich Village Historic District was
designated in 1969. As finally delineated, its northern boundary was placed just south of 14th
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Street and it extended as far south as St. Luke’s Place. (A map taken from the LPC website
showing the original 1969 bounds of the District is included as Exhibit B in the Exhibit Binder.)
Included within these bounds was the site of the Curran Building, as well as St. Vincent’s East
Campus buildings. As a result, they all became subject to the restrictions of the Landmarks
Law.
36. In support of the designation, the LPC compiled and submitted as part of the
record a detailed block-by-block inventory of the structures within the District, including, in
particular, those of architectural distinction. This report included and singled out the Curran
Building in the following language:
“The large five-story building of the National Maritime Union is a striking contemporary structure. Erected in 1962-63 from plans by Arthur A. Schiller and Albert Ledner, it serves both as its National Headquarters and as its Port of New York Office. The main portion of the building fronting on the Avenue is a glistening white, built above two curving glass-block walls. It has two overhangs at the top floors which are dramatized by their scalloped edge profiles. These overhangs produce an interesting play of light and shade. The rectangularized pattern of the jointing of the stone veneer lends a new dimension to the building, making us doubly aware of the various wall planes. . . Behind the main mass a six-story section rises up, extending through from street to street.” (italics added)
37. In 1973, four years after its designation, St. Vincent’s acquired the Curran
Building from the National Maritime Union for approximately $6 million (less than $30 a
square foot) – a price that presumably reflected the Landmarks restrictions already in place. The
New York Times reported at the time that St. Vincent’s had previously planned to build a new
facility to house these services, but when the Curran Building came on the market, it concluded
that the existing facility would more economically meet these needs. (The articles are included as
Exhibit C in the Exhibit Binder.). Recognizing the restrictions imposed by the Landmarks Law,
29
St. Vincent’s did not make changes to the exterior of the Building, but substantially reconfigured
the interior (as allowed under the Law) so that it could be used for doctors’ offices, outpatient
clinics and related services. Once the interior renovation was completed, the Hospital renamed
the structure the Edward & Theresa O’Toole Medical Services Building. For the next 35 years,
St. Vincent’s used the Building for doctors’ offices and outpatient services; it continues to do so
today; and the Hospital has made no claim that it cannot continue to use it for these purposes in
the future.
38. From 1969, when the Greenwich Village Historic District was designated, to now,
St. Vincent’s main operations, including its emergency and inpatient services, have been carried
on in the eight buildings it owns east of Seventh Avenue between 11th and 12th Streets (hereafter
referred to as the “East Campus”). In 1984, the facilities were modernized with the construction
of two new buildings – Coleman and Link -- that replaced two older ones the LPC authorized for
demolition. However, in 2005, as a result of overexpansion, St. Vincent’s voluntarily sought
relief under Chapter 11 of the U.S. Bankruptcy Code. In the course of this proceeding, St.
Vincent’s sold off or terminated its expansion operations and developed a plan for going
forward. This initially focused on modernizing its East Campus facilities, but after CIT was
retained as a real estate consultant, a new approach emerged. Under this concept, St. Vincent’s
would sell its East Campus to a private developer that would raze the existing buildings and
construct a for-profit real estate development, paying the Hospital handsomely for the property.
St. Vincent’s would use the resulting funds to pay off a certain amount of debt and build a new
hospital on the O’Toole site.
30
39. Integral to this plan was both the demolition of a historic building and the
approval of two new high-rise structures in the Greenwich Village Historic District – something
that was far from certain. Nonetheless, when St. Vincent’s emerged from bankruptcy in 2007,
this was the plan it proposed to follow. Recognizing the uncertainties, it articulated the risks in
the Disclosure Statement provided to its creditors when the reorganization plan was approved:
“Since it began working in July 2006, CIT has undertaken an extensive analysis of the Manhattan [East] Campus and has determined that SVCMC may be able to maximize value by selling certain buildings in their Man-hattan Campus and building a new state-of-the art hospital on the property currently occupied by the O'Toole Building (on the west side of Seventh Avenue). The Debtors (and the Committees) have been advised that accomplishing such a reconfiguration of the SVCMC's real estate is dependent on numerous levels of regulatory approval, including zoning approvals, that could take three (3) to five (5) years, and actually com-pleting the sale of certain buildings and the construction of a new hospital on the O'Toole Building location could take several more years after regulatory approvals are received. Furthermore, SVCMC understands that the success of this alternative requires not only finding an appropriate development partner but also substantial philanthropy. Given the length of time that this effort would require, the Plan is not based on this effort or its ultimate success. Success in this effort, however, would greatly en-hance SVCMC's ability to perform in the future in accordance with the Plan. And if the effort is not successful, SVCMC will be required to expend substantial funds to rehabilitate the current Manhattan Campus to address identified deferred maintenance and capital improvements.” (italics added).
40. Even before St. Vincent’s emerged from Chapter 11, it had begun discussions
with the LPC regarding the concept. These continued in 2007, when there were several meetings
with the LPC Chairman and members of the staff. Responding to a Freedom-of-Information
Law request by PVHD, the LPC has not produced any minutes of these meetings or memoranda
summarizing the discussions, but the interaction with the LPC led eventually to the filing by St.
31
Vincent’s, on December 31, 2007, of applications to pursue the plan identified in the Chapter 11
process.
41. There were two companion applications, both seeking “certificates of appropriate-
ness” for proposed actions in the Greenwich Village Historic District. The first was that of St.
Vincent’s; it asked the LPC to find the demolition of the O’Toole Building and the construction
of a 340 foot hospital tower in its place “appropriate” within the Historic District. The second
application was that of a major New York City real estate developer, Rudin Development
(“Rudin”), and sought approval as “appropriate” of the demolition of all eight buildings on the
East Campus and their replacement with a 400-unit luxury residential development. In their
filings and subsequent presentations, both St. Vincent’s and Rudin took the position that the
demolition of nine buildings in the Historic District, including the O’Toole Building, was
“appropriate” – i.e., compatible with the historic fabric of Greenwich Village and compatible
with landmarks preservation in the City. The O’Toole Building, in particular, was derided as
unimportant.
42. Following the filing of the applications, the LPC referred them to Community
Board 2 for its review and comments. The Community Board and its Omnibus St. Vincent’s
Committee held a series of public hearings, at which the opposition of the community to the
plans was made evident. PVHD and many of the other petitioners spoke at these hearings, and
in March 2008, the Community Board adopted a detailed Resolution opposing the applications.
43. On April 1, 2008, the LPC held its first public hearing on the applications. St.
Vincent’s and Rudin were given and took nearly three hours to present their plans and argue their
case. None of this was presented under oath, no cross examination was permitted and questions
32
were limited to those by commissioners. Much of the presentation consisted of statements and
arguments regarding the necessity of modernization – the need to use the O’Toole site to
accomplish that and the importance of selling the East Campus to help fund the new hospital
tower. There were also lengthy architectural presentations for the proposed tower and Rudin
luxury residential development. In addition, one witness testified (again, not under oath) that
demolishing nine existing hospital buildings, including O’Toole, would have no significant
negative effect on the Historic District. O’Toole, in particular, was ridiculed: According to the
witness, “[T]he building is only notable within the fabric of Greenwich Village because it is so
hostile to its setting. . . . This is one of the few unpleasant blocks in all of the Village. From the
prior discussion, it should be clear that replacing the union hall could result in a significant
improvement of the fabric of the Village.”
44. When the applicants finally completed their presentations, the local elected
officials – Congress Member Jerold Nadler, State Senator Tom Duane, State Assembly Member
Deborah Glick, NYC Council Speaker Christine Quinn and Manhattan Borough President Scott
Stringer – were invited to give statements. These were read by aides and generally opposed the
massive demolition proposed by the applicants. At the same time, several of them were
supportive of modernizing the Hospital, even if that involved the demolition of the O’Toole
Building.
45. Finally, the public was given a chance to weigh in – limited to three minutes for
each speaker. The opposition was intense. Historic preservation organizations, led by the
Greenwich Village Society for Historic Preservation and including the Municipal Art Society
and HDC, used their few minutes to note, among other things, that there was simply no
33
precedent for such wholesale demolition in a Historic District, much less their replacement by
huge new towers. PVHD, though its attorney and principal officers, gave oral testimony (limited
to three minutes each) and also made a substantial written submission to the Commission. These
emphasized not only the damage that the plan would wreak in the Historic District but also the
legal infirmity of entertaining the applications under the standard of “appropriateness,” when the
argument of St. Vincent’s was really one of claimed necessity.
46. Other individuals and organizations focused on the importance of the buildings
the applicants were proposing to demolish. This included a presentation by DoCoMoMo-New
York Tristate, which submitted a report documenting the architectural and historical significance
of the O’Toole Building. (A copy of the DoCoMoMo report is included as Exhibit D in the
Exhibit Binder). The same theme had been sounded earlier in the day by Mr. Nicolas Ourousoff,
the architectural critic for The New York Times, whose article lauding the O’Toole Building and
deploring the St. Vincent’s and Rudin plans had appeared in the morning edition of the paper.
Among other things, Mr. Ourousoff wrote:
“The application by St. Vincent’s Catholic Medical Center calls for the demolition of nine structures on West 11th and 12th Streets, near Seventh Avenue, to make way for a towering new co-op building and hospital. The threatened buildings range from the 1924 Student Nurses Residence Building to the 1963 O’Toole Building, one of the first buildings in the City to break with the Modernist mainstream as it was congealing into formulaic dogma. . . “The threatened demolition of the O’Toole Building is most troubling of all. Designed by New Orleans architect Albert C. Ledner, it is significant both as a work of architecture and a repository of cultural memory. “It was built to house the National Maritime Union, as the era of long-shoremen and merchant sailors was nearing an end. Its glistening white façade and scalloped overhang, boldly cantilevered over the lower floors, were meant to conjure an ocean voyage and a bright new face for the
34
union. (Think of “On the Waterfront”). Its glass brick base, once the site of union halls, suggests an urban aquarium. “In short, you don’t need to love the building to grasp its historical value. Like Ledner’s Maritime dormitory building on Ninth Avenue or Edward Durell Stone’s Columbus Circle, the O’Toole represents a moment in time when some architects rebelled against Modernism’s glass-box aesthetic in favor of ornamental facades. “Viewed in this context, the O’Toole Building is part of a complex historical narrative in which competing values are always jostling for attention. This is not simply a question of losing a building; it’s about masking those complexities and reducing New York history to a carica-ture. Ultimately, it’s a form of collective amnesia.” (italics added).
47. The April 1 public hearing continued until 7 PM. By that time, nearly 120
individuals and groups had testified, the overwhelming majority (close to 90%) of them in
opposition to the applications. Moreover, 40 others had signed up to testify but were not
reached. Of these, approximately 85% indicated on their sign-up sheets that they opposed the
applications, and close to 40 people who did not ask to speak but left statements were against the
proposals. Due to the lateness of the hour, the LPC adjourned the hearing but announced that it
would hold a further public hearing in the near future. This second public hearing was held on
April 15, 2008, with approximately 45 individuals and groups presenting statements, all but eight
of them opposing the applications. Included among these was a submission by Ms. Francoise
Bollack, an architect with distinguished credentials in historic preservation, attesting to the
importance of the O’Toole Building. A copy of that submission is included as Exhibit E in the
Exhibit Binder.
48. Following the public phase of the April 15 hearing, the applicants were given
another opportunity to make their case and “answer” points that had been made in the public
sessions. Again, none of the further submissions and responses were made under oath, there was
35
no cross examination, and only the commissioners were allowed to ask questions. Among the
few that were posed was whether it would be possible to adaptively reuse at least some of the
building on the East Campus as part of the condominium development. The applicants’ answer
was “no” – the buildings were too narrow, too constricted. With that, the public hearing was
closed.
49. On May 6, 2008, the LPC met in a public meeting (which, as distinct from a
public hearing, permits no public testimony) to discuss the applications. Each individual com-
missioner was asked for his or her reaction to the Rudin/St. Vincent’s proposal. To a person, all
of them stated their view that the O’Toole Building was a significant historic structure and that it
would not be “appropriate” to allow its demolition. In addition, they agreed that the wholesale
demolition proposed for the East Campus was not “appropriate” and identified four of the eight
existing buildings that they felt needed to be preserved. At the conclusion of the statements, the
Chairman did not call for a formal vote, but instead suggested that the applicants should go back
and reconsider their plans, which is how matters were left. A copy of relevant sections of the
transcript of the May 6 discussion is included as Exhibit F in the Exhibit Binder. (The LPC
eventually adopted a resolution finding the demolition of O’Toole inappropriate at its October
28, 2008 meeting.)
50. On May 19, 2008 – just 13 days after the commissioners had effectively rejected
the original plans – St. Vincent’s reapplied to demolish the O’Toole Building, no longer because
it would be “appropriate” to do so but rather on the basis of claimed constitutional “hardship” –
an alleged inability to pursue its charitable mission if it was unable to demolish the structure. At
the same time, St. Vincent’s submitted revised plans for its proposed tower, chopping 30 feet
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(out of 329) off the height of the building and reducing its width by about 40 feet. Rudin also
submitted revised plans for the condominium development. These preserved and reused as part
of the condominium the four East Campus buildings that the commissioners had identified on
May 6 – something the Rudin architects had said would not be possible when asked at the April
15 public hearing.
51. St. Vincent’s revised application also included a Statement in support of the claim
of hardship, which, the document emphasized, was NOT based on financial considerations, but
solely on physical limitations. The basic message of the Statement was that (i) the Hospital
needed to modernize because its East Campus facilities were inadequate, (ii) the only property
that it owned that could be used for a new facility was the O’Toole site, (iii) unless it could
demolish the O’Toole Building, it would not be able to modernize and (iv) this constituted a
constitutional hardship that would defeat its charitable mission. No claim was made that the
O’Toole Building was not functional or that it could not continue to be used for doctors’ offices
and outpatient services. Nor was any reference was made to the U.S. Supreme Court’s holding
in landmark Grand Central case [Penn Central Transportation Co. v. New York City, 438 U.S.
104 (1976)] that if a landmarked facility could continue to be used effectively for the purposes it
had been serving – in that case as a railroad terminal – there was no basis for claiming hardship.
The Statement assumed that it was enough that St. Vincent’s owned the O’Toole site and needed
it to provide modernized heath care.
52. Following the filing of the revised applications, the LPC referred the matter for
comment to Community Board 2. There, the change in the Rudin plans was viewed as positive,
although the Rudin luxury development was still judged to be too tall, the failure to preserve a
37
fifth building was challenged, and a number of other design-related objections were identified.
Regarding the demolition of O’Toole, the Board reiterated its view that this would result in a
significant loss to the Historic District, but also stated that “hardship” might justify such an
outcome if there were no alternatives and the hardship was real. As to the last question, the
Board concluded that it did not have adequate expertise to reach a judgment.
53. On June 3, 2008, the LPC held a first public hearing on the revised applications.
Once again, the applicant was given free rein in the presentation of its case; once again, nothing
was under oath, there was no cross examination and only the commissioners were permitted to
ask questions. Following the applicants’ presentation, the public was given its turn, with a three
minute limit for speaking. Through its attorney and Steering Committee members, PVHD
restated its objections to the demolition of the O’Toole Building and the proposed new tower
(now reduced to 300 feet), as well as to the size of the Rudin luxury development. In addition, it
took the position that St. Vincent’s case did not meet the legal standard for constitutional
hardship. HDC also protested the demolition of the O’Toole Building and presented arguments,
similar to those articulated by PVHD, that the legal standard for hardship was not met in the
case. DoCoMoMo made a further submission on the importance of the O’Toole Building and
opposed its demolition, noting that alternatives were available. In addition, a proposal for the
reuse of the O’Toole as a hotel was submitted on behalf of an unidentified developer. (A copy of
this submission is included as Exhibit G in the Exhibit Binder.) In all, some 60 individuals and
groups gave statements at the June 3 hearing; of these, approximately 45 were in opposition.
54. On July 15, 2008, the LPC held a final public hearing on the revised applications,
although by this time the principal focus was on the hardship claim of St. Vincent’s. This
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session began with statements from the elected officials, four of whom supported the demolition
of the O’Toole building IF the Commissioner found that there was a constitutional hardship. The
floor was then opened to the public in the usual format. Approximately 80 groups and
individuals spoke or otherwise indicated their position; of these, approximately 70 opposed the
revised applications. The opposition included two of the three citywide historic preservation
groups and several other district preservation organizations. DoCoMoMo reiterated its position
that the O’Toole Building was of high architectural merit and should not be sacrificed. PVHD
expanded on the comments it had made on June 3 and submitted for the record a letter and report
from the State Historic Preservation Office (part of the New York State Office of Parks,
Recreation & Historic Preservation) finding that the O’Toole Building met “the criteria for
listing to the State and National Registers of Historic Places.” (A copy of the SHPO letter and
report is included as Exhibit H in the Exhibit Binder.) In addition, PVHD submitted a written
Brief on the standard for constitutional hardship set out in the Grand Central case and a later
Second Circuit decision which affirmed the LPC denial of a hardship claim made by St.
Bartholomew’s Church on Park Avenue. The Brief also pointed out that there had been no
independent analysis of alternatives to using the O’Toole site and urged the LPC to undertake its
own investigation. A copy of the Brief is included as Exhibit I in the Exhibit Binder.
55. Following the public comments, the applicants were given the final say. Prior to
the hearing, the LPC had sent written questions to St. Vincent’s, and it invited the latter to give
its answers at the end of the public session. St. Vincent’s had prepared written responses, none
of which were made public before the hearing, but it did not rest with these, presenting
witnesses, none under oath or subject to cross examination, who read the answers and took a
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limited number of questions from the commissioners. The public was not given any chance to
provide comments on this presentation, at the end of which the public hearing was closed, but
with the record held open for later written submissions.
56. Subsequent to the July 15 public hearing, PVHD made a number of further
submissions to the LPC. These included a Reply Brief responding to legal assertions made by
the attorney for St. Vincent’s at the hearing, comments on St. Vincent’s responses to the LPC’s
questions that had been made public only after the public session closed, and an identification of
potential alternative sites for the new tower. Copies of these submissions are included as
Exhibits J, K and L in the Exhibit Binder.
57. On October 7, 2008, the LPC conducted a public meeting to entertain the views of
several New York City agencies and the New York State Department of Health. The public was
permitted to watch but not participate in this meeting, either by asking questions or otherwise. It
appears that the persons asked to testify had been selected by the Chairman without any (or any
significant) input from other commissioners. They included representatives of the New York
City Departments of Health and Office of Emergency Management and a Vice President of the
New York City Economic Development Corporation (“EDC”). All three witnesses supported
the St. Vincent’s position, with the EDC speaker presenting a comparison of sites that he stated
could accommodate the new hospital tower but which he found too costly – a factor that St.
Vincent’s head explicitly excluded from its hardship claim. The representatives of the Depart-
ment of Health were explicit in saying that they had not studied the St. Vincent’s plan but
recognized the Hospital’s need to modernize. This completed the meeting. None of the
witnesses were under oath and none of them were cross-examined. Ten days later, PVHD’s
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attorney submitted a letter commenting on the testimony that had been given on October 7,
pointing in particular to the inconsistencies and errors in the EDC presentation. A copy of this
letter is included as Exhibit M in the accompanying Exhibit Binder.
58. On October 28, 2008, the LPC met for a final time on the hardship application.
As it turned out, consideration of the proposed new tower was separated out and the sole focus
was on the demolition of the O’Toole Building. It was at this meeting that the LPC made its
decision regarding the hardship application.
59. It was apparent that before this meeting, the commissioners had not met as a group
to discuss their individual points of view or undertaken any debate, exchange of ideas or joint
consideration of the hardship application, either of the facts or of the law. Instead, the Chairman
took it upon himself to frame the issue by giving his own views on hardship at the beginning of
the meeting and stating his conclusion that St. Vincent’s should be allowed to demolish the
O’Toole Building.
60. Following the Chairman’s statement, the remaining nine commissioners gave
their individual opinions. It was evident that as each commissioner spoke, the others were
hearing his or her evaluation and conclusion for the first time. Six votes were required to
approve the hardship application; five commissioners, including Commissioner Fred Bland who
had only recently become a member of the LPC, joined the Chairman in supporting St. Vincent’s
application. However, in at least two instances, their reasoning was quite different. Thus,
Commissioner Bland used a balancing test to reach his conclusion, stating that the O’Toole
Building was not so worthy a landmark as to offset the Hospital’s needs, whereas another
protected landmark could have been. The question of hardship was not the basis of his
41
judgment. A second LPC member, Commissioner Christopher Moore, based his conclusion in
significant part on financial considerations, even though St. Vincent’s had explicitly said that it
was not seeking a hardship determination on that basis.
61. Four commissioners, including the only two with experience in hospital
architecture, concluded that the hardship application should be denied. All of them identified as
a basic failing the absence of a persuasive case that there were no reasonable alternatives, each
expressing confidence that there were. But the dissenters also focused on other issues, including
the failure of St. Vincent’s to meet the legal standard for hardship. This point was made most
clearly by Commissioner Roberta Gratz in her opinion.
“The O’Toole building, originally the headquarters of the National Maritime Union and one of the few remnants of an era when maritime commerce dominated the Manhattan waterfront, is a one of a kind landmark of unusual distinction. Consequently, this Commission voted unanimously to designate in May concluding that it would be inappropriate to tear down O’Toole. With that vote, we made it clear that only under the very limited circum-stances of hardship could we find it appropriate to demolish this building. Thus, the only basis for us to allow such an outcome no matter how much we sympathize with the hospital’s plight is if the hospital demonstrated that the maintenance of O’Toole physically prevents or seriously interferes with the carrying out of St. Vincent’s charitable purpose. The hospital has never denied nor could it that O’Toole can continue to be used for the purpose for which it was acquired, outpatient services and doctors offices, functions that are integral to the hospital’s operations. Thus maintenance of O’Toole is not the problem and does not create the required hardship. “Whatever problems the hospital may face, the O’Toole building does not create them. Nothing could be clearer than this. Our decision that the demolition of O’Toole would be inappropriate could not constitute a taking because its continued use for its present activities is perfectly viable. If we were now to allow demolition notwithstanding that the criteria for hardship articulated by prior landmarks cases, I am persuaded we would be acting in a discretionary way not authorized by the law. “What St. Vincent’s has argued is not that O’Toole creates the hardship but the existing east campus does and O’Toole is needed to remedy the larger problem. However, that is not the appropriate standard by which we are to
42
judge. This is what I find most disturbing and in fact scary. If that were the appropriate test, it would wreak havoc with the law’s protections. Any charity in any historic district could claim it had a special need to fulfill its mission and that need could only be remedied by tearing down a landmark even though the facility was purchased after its designation as a landmark. The fact that the historic structure was viable in its own right would not matter; the only issue would be the needs of the institution.” (italics added)
62. When the last commissioner concluded his statement, six commissioners
supported the finding of hardship and four were opposed. There was no further discussion, nor
any opportunity given for it. The Chairman proposed a motion based on an abbreviated version
of his earlier statement, which he paraphrased in the form of a one paragraph resolution, adding
in the finding that it would not have been “appropriate” to demolish the O’Toole Building, and
asked for a vote. This was done by voice. The specific votes of each commissioner were not
identified, but the motion carried. The Chairman then adjourned the meeting. No majority
decision elaborating the reasons for the approval was issued and no dissenting opinions were
invited. A copy of the transcript of the October 28 public meeting and discussion is included as
Exhibit N in the Exhibit Binder
63. On November 25, 2008, PVHD submitted to the LPC a Petition to Reconsider its
October 28 decision. The bases set forth in the Petition were that the Decision (i) did not fairly
assess alternatives, (ii) was based on erroneous standards, (iii) violated the law established in the
Grand Central and St. Bartholomew’s cases and (iv) erroneously separated the hardship phase of
the proceeding from the consideration of the proposed new hospital tower. A copy of the
Petition is included as Exhibit O in the Exhibit Binder. PVHD has never received a response
from the LPC.
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64. The LPC’s decision of October 28 to approve the hardship application of St.
Vincent’s and authorize the demolition of the O’Toole Building constituted, and constitutes, the
LPC’s final decision on hardship with respect to the O’Toole Building, with no further
opportunity for petitioners or others to change or reargue that decision within the administrative
process. And while other aspects of the St. Vincent’s and Rudin applications, including
decisions on the appropriateness of the designs of the proposed new structures, remain to be
decided, the LPC hardship decision on O’Toole is final and thus ripe for judicial review.
FIRST CAUSE OF ACTION
(The O’Toole Building Does Not Create a Hardship under the Landmarks Law)
65. The allegations contained in paragraphs numbered 1 through 64 are hereby
repeated and realleged as if fully set forth herein.
66. With one exception, the Landmarks Law prohibits the alteration or demolition of
an individual landmark or any structure within a historic district unless the LPC finds such action
to be appropriate. In this case, the LPC found that the demolition of the O’Toole Building would
not be appropriate. As a result, under the Law, the LPC could only approve demolition of the
O’Toole Building pursuant to that one exception, which was and is a constitutional test. In the
case of a private owner, that test is whether the landmark restrictions on the structure proposed
for alteration or demolition prohibit the owner from realizing a “reasonable return.” In the case
of a charity (or other eleemosynary institution), the test, as developed by the New York courts in
the Snug Harbor decision, is “where maintenance of the landmark either physically or financially
prevents or seriously interferes with the carrying out of the owner’s charitable purpose.” Matter
of Trustees of Sailors’ Snug Harbor v. Platt, 29 A.D.2d 376 (1st Dept. 1968). If that is not the
44
case, the LPC cannot approve demolition or alteration – the Landmarks Law only allows it to do
so if there is a constitutional hardship as the law defines it.
67. The definition of what constitutes a constitutional hardship for a charity was
elaborated on and further refined in the cases involving Grand Central Terminal and St.
Bartholomew’s Church. As stated by the Second Circuit Court of Appeal in the St. Bart’s case:
“Applying the Penn Central [Grand Central] standard to property used for charitable purposes, the constitutional question is whether the land use [historic preservation] regulation impairs the continued operation of the property for its originally expected use.” St. Bartholomew’s Church v. City of New York, 914 F. 2d 348, 356 (2nd Cir. 1990) (italics added).
68. Applying the Snug Harbor test, as elaborated on in Penn Central and St.
Bartholomew’s cases, demolition of the O’Toole Building is not supportable. The facility is
currently being used, and can continue to be used, for “its originally expected use” as an
outpatient facility and for doctors’ offices, and St. Vincent’s has not claimed (nor could it) that
the maintenance involves a financial hardship. As a result, the constitutional hardship test that
would permit demolition of the O’Toole Building is not, and has not been, met. Whatever
hardship, if any, St. Vincent’s faces, it is not caused by the O’Toole Building.
69. By reason of the foregoing, the LPC’s decision to allow the demolition of the
O’Toole Building notwithstanding having previously found such action to be “inappropriate”
was beyond its authority under the Landmarks Law, which limits demolition in such cases to
instances of constitutional hardship.
70. By reason of the foregoing, the LPC’s decision to allow the demolition of the
O’Toole Building should be set aside as arbitrary and capricious and affected by an error of law.
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71. Some or all of the petitioners are injured and damaged by such illegal act in that
the decision will result in: (i) the loss of the O’Toole Building, which is an integral part of the
historic fabric which surrounds their homes; (ii) the loss of the low-rise character of the historic
neighborhood in which they lives, (iii) construction of the new hospital tower, which will result
in a 300 foot high structure that is incompatible with the low rise character of the neighborhood
and will block views of the historic neighborhood, (iv) the disruption of the neighborhood and
the 11th, 12th and 13th Street blocks on which they live during the eight-year construction period,
(v) and the long term impact of increased noise and traffic congestion, all of which will impair
the quality of their environment and diminish the value of their homes.
72. Petitioners have exhausted their administrative remedies and have no adequate
remedy at law.
SECOND CAUSE OF ACTION
(A Finding of Hardship Was Precluded Because St. Vincent’s Bought the O’Toole Building after the Landmarks Restrictions Were in Place)
73. The allegations contained in paragraphs numbered 1 through 72 are hereby
repeated and realleged as if fully set forth herein.
74. St. Vincent’s acquired the O’Toole Building AFTER the landmark regulations
restricting it alteration or demolition were in place and in effect; and it had full knowledge of
those restriction (or if it did not, it should have had full knowledge).
75. Since St. Vincent’s acquired the O’Toole Building, that land uses around it have
not changed in any significant way, but to the contrary, the landmark regulations in place have
maintained the fabric of land use largely as it was at the time of the acquisition. Thus, there are
46
no conditions that have arisen since the acquisition that have changed in a way that would justify
any expectation that the restrictions should be modified or rescinded.
76. As a result, St. Vincent’s “reasonable investment backed expectations” at the time
it acquired the O’Toole Building did not include, and in the absence of changed circumstances
cannot include today, the notion that it would or should be able to demolish the Building.
77. As a consequence, St. Vincent’s could not claim, and the LPC could not legally
find, a constitutional hardship justifying the demolition of the O’Toole Building, since the denial
of permission would not defeat the Hospital’s reasonable investment backed expectations.
78. By reason of the foregoing, the LPC’s decision to allow the demolition of the
O’Toole Building notwithstanding having previously found such action to be “inappropriate”
was beyond its authority under the Landmarks Preservation Law, which limits demolition in such
cases to instances of constitutional hardship.
79. By reason of the foregoing, the LPC’s decision to allow the demolition of the
O’Toole Building should be set aside as arbitrary and capricious and affected by an error of law.
80. Some or all of the petitioners are injured and damaged by such illegal act in the
manner described above in paragraph 71.
THIRD CAUSE OF ACTION
(The LPC Failed to Make an Adequate Investigation of Alternatives)
81. The allegations contained in paragraphs numbered 1 through 80 are hereby
repeated and realleged as if fully set forth herein.
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82. The LPC acknowledged that it could only make a finding of constitutional hard-
ship if there were no reasonable alternatives that could avoid demolition of the O’Toole Building.
83. The LPC did not itself investigate alternatives to any meaningful degree, nor did it
require St. Vincent’s to do; and it ignored (or at least never responded to) the PVHD submission
on alternatives. Even so, the four dissenting commissioners concluded that if a good faith effort
had been made, sound alternatives would have emerged; and they identified several, including
reconfiguration of St. Vincent’s East Campus.
84. Because St. Vincent’s sought a constitutional exception, the LPC was under a
particular duty to fully investigate the facts, including alternatives, on its own initiative if, as was
true here, St. Vincent’s presented the Commission with a one-sided, self-interested case. The
LPC failed to do this. As a result, the record on alternatives was paltry and insufficient to
support a finding of constitutional hardship.
85. In failing to develop an adequate record on alternatives, the LPC failed to meet its
legal duties and defeated the opportunity to find reasonable alternatives that could avoid demo-
lition of the O’Toole Building. As a result, the LPC’s decision to allow the demolition should be
set aside as arbitrary, capricious, and abuse of discretion and affected by an error of law.
86. Some or all of the petitioners are injured and damaged by such illegal act in the
manner described above in paragraph 71.
FOURTH CAUSE OF ACTION
(Any Hardship to St. Vincent’s Is Self-Created)
87. The allegations set forth in paragraphs numbered 1 through 86 are hereby
48
repeated and realleged as if fully set forth herein.
88. St. Vincent’s current hospital operations, including its Level 1 Trauma Center
operations, are carried on primarily on the East Campus. These facilities could be reconstructed
and modernized to meet all of the Hospital’s needs. However, St. Vincent’s instead proposes to
sell the East Campus to Rudin, which would demolish most of the hospital buildings and
construct in their place a luxury residential development.
89. If St. Vincent’s did not sell the East Campus for residential development (which it
apparently proposes to do to raise funds for its modernization), there would be no need for it to
demolish the O’Toole Building. Thus, to the extent that the Hospital claims that it will suffer a
hardship unless it can demolish the O’Toole Building, it is a self-created hardship that results
solely from the decision to sell the East Campus.
90. By reason of creating its own hardship by selling its East Campus, St. Vincent’s
cannot properly complain about that hardship, and the LPC could not properly conclude that
there was a hardship under the Landmarks Law.
91. By reason of the foregoing, the decision of the LPC is approving the demolition
of the O’Toole building was arbitrary and capricious and affected by an error of law.
92. Some or all of the petitioners are injured and damaged by such illegal act in the
manner described above in paragraph 71.
FIFTH CAUSE OF ACTION
(The Decision Was Not Carried by Six Qualified Votes)
93. The allegations set forth in paragraphs numbered 1 through 92 are hereby
49
repeated and realleged as if fully set forth herein.
94. Under the Landmarks Law and the LPC’s regulations, the Commission can only
approve an action with the affirmative vote of at least six commissioners. In this case, that
required at least six commissioners to find that denial of the right to demolish the O’Toole
Building would result in a constitutional hardship; and because St. Vincent’s explicitly limited
its claim to physical hardship, excluding any assertion of financial hardship, any constitutional
finding had to be based solely on physical hardship.
95. As is evident from his statement on October 28, Commissioner Bland did not base
his approval on any basis of constitutional hardship, physical or financial, but rather used a
balancing test in which he concluded that the O’Toole Building was not an important enough
structure to offset St. Vincent’s modernization needs, while Commissioner Moore relied on
financial considerations, which were not relevant and with regard to which St. Vincent’s had not
claimed hardship or submitted a case. As a consequence, the affirmative votes of these two
commissioners were fatally flawed and should be disqualified by the Court.
96. By reason of the foregoing, only four valid votes were cast in support of the
finding of constitutional hardship. Because a minimum of six votes are required for the LPC to
take any action, the vote to approve St. Vincent’s hardship application was, and is, null and void,
and should be declared to be such by this Court.
97. Some or all of the petitioners are injured and damaged by such illegal act in the
manner described above in paragraph 71.
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SIXTH CAUSE OF ACTION
(The LPC Improperly Bifurcated the Hardship Proceeding)
98. The allegations set forth in paragraphs numbered 1 through 97 are hereby
repeated and realleged as if fully set forth herein.
99. When St. Vincent’s filed its revised application seeking permission to demolish
the O’Toole Building on the basis of hardship, it also filed revised plans for the replacement
hospital tower. It was not clear whether these plans constituted part of the hardship application
or not. However, as the review process went forward, the LPC appeared to put the plans for the
tower on the back burner, and when the Commission addressed the hardship claim on October
28, it focused only on O’Toole.
100. This bifurcation of the hardship process was of great concern to PVHD because
we regarded both aspects of proposal as relevant to any finding of hardship; and our concerns
were exacerbated when one of the commissioners who made up the majority emphasized that
their decision was in no way an endorsement of the proposed tower. The separation of the two
issues seemed more a way of facilitating a finding of hardship without the commissioners having
to take account of the full implications of that decision than any logical process. Consequently,
when PVHD petitioned the LPC to reconsider its decision, one of the grounds was that the
Commission had improperly bifurcated the hardship proceeding. The LPC never responded.
101. Subsequently, at a public meeting on December 16 called to consider the
appropriateness of the proposed hospital tower, the LPC’s general counsel advised the
commissioners that, in fact, their determination on hardship could preclude their rejecting the
tower even though they regarded it as inappropriate; and this possibility assumed much greater
51
importance when, at the meeting, six of the commissioners gave their view that the tower was
much too tall. Yet under counsel’s interpretation, that conclusion could end up having no effect.
102. This situation has arisen because the LPC improperly bifurcated the two aspects
of the hardship issue; and the LPC counsel’s view that the Commission’s consideration of the
appropriateness of the proposed tower may be limited by its hardship finding on O’Toole brings
home the failings, legal and other, that have resulted from the bifurcation. In the most immediate
way, it means that the commissioners’ hands may be tied in passing judgment on the tower, even
though they had thought otherwise (and were assured otherwise by their Chairman) at the
October 28 meeting. Beyond this, however, the bifurcation meant that the commissioners were
not voting on a whole package and their consideration of the hardship issue was improperly
limited.
103. By reason of the foregoing, the LPC’s decision to approve the demolition of
O’Toole was undercut and rendered illegal because the commissioners were denied the
opportunity to vote on the overall hardship application and were improperly limited in their
considerations by the improper bifurcation of the hardship process.
104. Some or all of the petitioners are injured and damaged by such illegal act in the
manner described above in paragraph 71.
SEVENTH CAUSE OF ACTION
(St. Vincent’s Did Not Comply with the Hardship
Provision of the Landmarks Preservation Law)
Alternative Claim
105. The allegations set forth in paragraphs numbered 1 through 104 are hereby
52
repeated and realleged as if fully set forth herein.
106. Because St. Vincent’s acquired the O’Toole Building AFTER the landmarks
restrictions on the property were already in place, there was no taking, and there could be no
taking, under the Landmarks Law; nor was there any basis upon which St. Vincent’s could claim,
or the LPC could find, any constitutional hardship. If this so, the hardship test that the New
York courts devised in the Snug Harbor case and its progeny did not apply, and could not be
applied by the LPC, in this case.
107. Assuming that the judicially devised “hardship” standard could not properly be
applied in this case, the only procedure open to St. Vincent’s in seeking an exception to the
restrictions imposed by the Landmarks Law was that provided in the Landmarks Law itself,
namely, proceeding pursuant to Section 25-309(a)(2) of the Administrative Code of the City of
New York for property owners of non-commercial property.
108. In order to qualify for special consideration based on hardship, Section 25-
309(a)(2) requires a showing that: (i) the owner of the property has entered into a contract to sell
their property or lease it for a minimum of 20 years and the contract or lease is contingent on the
issuance of a Certificate of Appropriateness or a Notice to Proceed from the LPC, (2) the
property would not, if it were not tax exempt, be capable of earning a reasonable return, (3) the
property has ceased to be adequate, suitable or appropriate for the purpose to which it is devoted
and the purpose to which it had been devoted when acquired and (4) the prospective owner or
tenant intends, if permitted, to demolish the building and build a new structure with reasonable
promptness or alter its structure with reasonable promptness. None of these showings was made,
or could have been made, by St. Vincent’s with regard to the O’Toole Building.
53
109. Section 25-309(i)(1) of the NYC Administrative Code further provides that
whenever the LPC finds that a charity (or other organization exempt from real estate taxation)
has established a hardship under Section 25-309(a)(2), “as promptly as is practicable after
making a preliminary determination with respect to such conditions, as provided in paragraph
one of subdivision a of this section, and within one hundred and eighty days after making such
preliminary determination, the commission, alone or with the aid of such persons and agencies as
it deems necessary and whose aid it is able to enlist, shall endeavor to obtain a purchaser or
tenant (as the case may be) of the improvement parcel or parcels with respect to which the
application has been made, which purchaser or tenant will agree . . . to purchase or acquire an
interest identical with that proposed to be acquired by the prospective purchaser or tenant whose
agreement is the basis of the application, on reasonably equivalent terms and conditions." On
information and belief, the LPC has made no effort to comply with this requirement.
110. The failure of the LPC to apply, and the failure of St. Vincent’s to meet, the
hardship standards set forth in Section 25-309(a)(2) of the Administrative Code, and the failure
of the LPC to pursue the procedures mandated by Section 25-309(i)(1), were arbitrary and
capricious, an abuse of discretion and in violation of the Landmarks Law.
111. By reason of the foregoing, the LPC’s decision to allow the demolition of the
O’Toole Building should be set aside and declared to be null and void.
112. Some or all of the petitioners are injured and damaged by such illegal act in the
manner described above in paragraph 71.
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EIGHTH CAUSE OF ACTION
(The LPC Hearing Process Was Too Chaotic and Arbitrary to Produce A Reasoned Decision Consistent with Constitutional Safeguards)
113. The allegations contained in paragraphs numbered 1 through 112 are hereby
repeated and realleged as if fully set forth herein.
114. In its role of designating individual landmarks and historic districts, the LPC
operates in a delegated legislative capacity, and the LPC has appropriately developed quasi-
legislative procedures to deal with these cases. But the situation is quite different when the claim
is one of hardship. In such cases, the issue is constitutional – whether the restrictions under the
Landmarks Law constitute a taking or, for charities, the equivalent of a taking. Because these
cases are heavily fact dependent and involve basic rights on both sides – the right of an owner to
make reasonable use of his or her property versus the right of the public to protect its cultural and
architectural heritage – the processes that the LPC uses in its quasi-legislative designation and
appropriateness reviews are inadequate to deal with claims of hardship. In these instances, a
more rigorous process that will ultimately be fair to the party claiming hardship as well as those
who oppose it is required – a process that is quasi-judicial rather than quasi-legislative.
115. In the case of St. Vincent’s and the its hardship claim, the LPC did not establish a
process that would meet this standard, as it had in earlier hardship cases, for example, that
involving the hardship application of St. Bartholomew’s Church. From the beginning, a majority
of the commissioners appeared to accept the truth of St. Vincent’s hardship claims at face value.
They did not undertake a sufficient inquiry on their own, and of equal importance, they provided
no opportunity for PVHD or any other opponent to ask questions. Moreover, it appears that
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several of the commissioners may have asked the Chairman to retain independent experts in the
fields of hospital construction and alternative sites to help them evaluate St. Vincent’s claims;
however, no such experts were retained. Similarly, one commissioner may have asked the
Chairman to engage as independent outside counsel a leading New York attorney who had
played a central role in the St. Bartholomew’s hardship proceeding, but this was not done.
116. The failure of process manifest during the hardship phase of the proceeding
culminated in a parallel failure in the decisional process itself. As was apparent at the October
28 meeting when the LPC reached its hardship decision, before they gave their individual
statements the commissioners had not engaged in any collaborative discussions or deliberations
among themselves or as a body, but rather acted individually to the point that on the day of the
decision, few, if any, of them knew how any other would vote or what reasons he or she might
have for that vote. As a result, no commissioner (with the probable exception of the Chairman)
had the opportunity to reason with or try to persuade other commissioners regarding the decision.
The LPC did not function in this case as an administrative agency, but rather as 11 individuals.
Moreover, the Commission did not issue a written opinion, nor did its members have such a
document available on which they could vote. Instead, the Chairman had the commissioners
adopt a one-paragraph version of his earlier statement, which none of them had seen but had only
heard him present orally that morning. As a result, there was no reasoned elaboration by the
LPC as a whole (or even by the majority) of the bases for the hardship conclusion.
117. The manner in which the LPC proceeded resulted in a splintered decision by a
group of individuals (rather than a coherent body) that was not based on the kind of consultative
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discussion and deliberation that the law requires of an agency. And instead of ending up with a
reasoned and elaborated opinion that a court could review, the outcome was a set of individual
statements and a one paragraph of oral findings provided by the Chairman as the meeting was
adjourning. Particularly in a case where the central issue was a constitutional one, more was
required of the Commission than this. The process fell so far short of that expected of
administrative agencies that the court should set the decision aside on this basis alone.
118. By reason of the foregoing, the LPC’s hardship decision was rendered in violation
of lawful process, was arbitrary and capricious and should be set aside.
119. Some or all of the petitioners are injured and damaged by such illegal act in the
manner described above in paragraph 71.
CONCLUSION
WHEREFORE, petitioners respectfully request that this Court render a judgment and
order containing the following relief:
(a) Declaring illegal and in violation of law the LPC’s decision authorizing/
approving the demolition of the O’Toole Building;
(b) Setting aside such approval and directing the LPC to conduct further
proceedings in accordance with applicable law;
(c) Enjoining St. Vincent’s and its representatives, officers, employees and
other agents from taking any actions or other steps to further the
demolition of the O’Toole Building;
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(d) Awarding petitioners’ legal fees, costs and disbursements in this action; and
(e) Granting such further or other relief as the Court deems just and equitable.
_____________________________ ALBERT K. BUTZEL Albert K. Butzel Law Offices Attorney for Petitioners 249 West 34th St, Ste 400 New York, NY 10001 Tel: 212-643-0375 REED W. SUPER Law Office of Reed Super 116 John St, Ste 3100 New York, NY 10038 Tel: 212-791-1881, X 22
58
VERIFICATION STATE OF NEW YORK )
) ss.: COUNTY OF NEW YORK )
THOMAS E. MOLNER, being duly sworn, deposes and says that he is the Chair and
Treasurer of petitioner PROTECT THE VILLAGE HISTORIC DISTRICT in the attached
Verified Petition concerning the illegal actions of the New York City Landmarks Preservation
Commission in approving the demolition of the O’Toole Building in the Greenwich Village
Historic District; that he has read the foregoing Verified Petition and knows the contents thereof;
that the same is true to deponent’s own knowledge, except as to the matters therein stated to be
alleged on information and belief, and that as to those matters deponent believes them to be true;
that the bases of the information stated on information and belief are personal experience and
participation in the events described in the petition, attendance at the public hearings and
meetings of the Landmarks Preservation Commission, materials in the public records of the LPC
and other materials of public record, newspaper reports and articles, documentation submitted to
the LPC, observations by deponent and others with knowledge of the facts and circumstances
surrounding this proceeding, and papers and documents in the file of his attorney.
________________________ THOMAS E. MOLNER CHAIR & TREASURER Protect the Village Historic District
Sworn to before me, a Notary Public, this _____ day of February, 2009 _______________________