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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK


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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.

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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
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

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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

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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

18
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.

19
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.

20
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

21
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

22
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

23
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

24
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.

25
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.

26
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

27
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,
28
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.

29
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.

30
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
31
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

32
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

33
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
34
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

35
(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

36
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

37
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

38
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

39
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
40
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
41
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.

42
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
43
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.
44
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

45
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.

46
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

47
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
48
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.

49
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
50
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

51
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.
52
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

55
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

57
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

_______________________

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