This petition by Cornell University pursuant to Article 78 of the Civil Practice Law and Rules challenges the denial of an application for a Certificate of Appropriateness by the respondent Ithaca Landmarks Preservation Commission (hereinafter "LPC") for the construction of a parking lot on its campus in Ithaca, New York.

For the reasons that follow the Court grants the petition, reverses and annuls the determination and directs the Commission to issue a Certificate of Appropriateness.

Cornell University wishes to construct a parking lot on its campus in Ithaca.

The parking lot is a relatively minor component of the University's West Campus Residential Initiative, a five-phase project for new upper-class student housing, consisting of 558 residence hall beds, a community center and an innovative integration of housing and academic programs. The "University Avenue Parking Lot" would be situated along the western portion of a site known as the "Treman Property" and would replace a larger existing lot that has been supplanted by the dormitory construction. Cornell commenced the municipal permitting process for the Initiative in early 2001 and, following extensive environmental review under SEQRA, received site plan approvals for all but the parking lot. Site plan approval for the parking lot was finally issued on October 29, 2003 following an Article 78 proceeding in this Court. (Cornell University v. Beach et al, Tompkins County Index No. 2003-327)

While that proceeding was pending, and after more than two years of the permitting process and environmental review, the Ithaca Landmarks Preservation Commission enveloped this site within a "University Hill Historic District" on June 2, 2003, (R-247) followed by a resolution of approval by the Common Council of the City of Ithaca on July 9, 2003 (R-245), both finding that the district is an area containing improvements which:

A. Have special character or special historical or aesthetical interest or value;

B. Represent one or more periods or styles of architecture typical of one or more eras in the history of the city; and

C. Cause such area, by reason of such factors, to constitute a visibly perceptible section of the city...

(R-246)

The "University Hill Historic District" encompassed the former residences of the Cornell and the Treman families. The City's resolution creating the district noted that "the large Cornell and Treman family estates each have unique visual character...The site and landscape of the Treman homes retain their cohesive form." (R-250) The ten and one half-acre site known as the Treman property and was originally comprised of three residences constructed between 1901 and 1902. One of the residences burned down in the 1940's and was replaced with a housing cooperative. The site is part of the Cornell campus and has been used by Cornell staff and students for more than fifty [*2]years.

As the Commission's expert historian Janet Shure has noted, "the western portion of the lawn has become overgrown with invasive species." (R-252) The three homes were intended to have "a unique and infinite view of Inlet Valley, West Hill and Cayuga Lake." (R-254) This view has been unavailable to University staff and students for many years due to the aforementioned overgrowth of invasive species. The primary landscape elements of Landscape Architect Warren Manning's plan (the stone retaining wall, central open lawn with mature trees and carriage drive) are intact though in need of repair. (R-252) The only suggestion that the western portion of the site (now overgrown) was ever intended to constitute an element of the landscape plan is an article printed in the Ithaca Daily News on November 2, 1901, in which the writer stated that the western portion of the lawn "will not contain any formal gardens, but will be left to nature as the best gardener." (R-253) The Commission concedes that this phrase merely "raises the possibility, at least, that what is now Redbud Wood [the overgrown section] may have been contemplated in the original design." (Beers Affidavit, par. 11) No records were furnished to the Commission supporting the landscape architect's original plans for the site. No records were ever furnished to the Commission confirming that Mr. Manning actually designed the landscape.

It is not disputed that the western-most section of the site, as late as the 1930's, was not "left to nature" but was still maintained as a lawn. Since then, the area has been overgrown with brush and trees, obscuring all views to the west. The petitioner's experts have opined that this area has the least historic integrity of the site.

Nor is it disputed that the proposed parking lot would leave 85% of the lawn intact. [Corby affidavit, par. 6(vii)]

On October 29, 2003 the petitioner Cornell University sought a Certificate of Appropriateness from the respondent City of Ithaca Landmark Preservation Commission for the construction the lot.

Following public hearings, on December 18, 2003 the petitioner's application was denied by the Commission. The Commission's resolution included a Statement of Findings as follows:

"The size and scale of the proposed parking lot adversely impact the landscape's physical and visual character.

The size and scale of the proposed parking lot impairs the historic context and setting for the Treman residences.

Coniferous trees proposed for planting west of the Treman residences to screen views of the parking lot from University Avenue impair panoramic West Hill views that contribute to the significance of the landscape design." (R-4)

Cornell seeks an order reversing and annulling this determination and directing the Commission to issue a Certificate of Appropriateness. [*3]

The LPC's determination should be sustained if it had a rational basis and is supported by substantial evidence. In the Matter of Pecoraro v. Board of Appeals of the Town of Hempstead, ___ NY2d ___ , 2004 WL 943398, 2004 Slip Op. 03510, NY, May 4, 2004, citing Ifrah v. Utschig, 98 NY2d 304, 308 (2002) See also, Johnson v. Town of Queensbury Zoning Board of Appeals, ___ AD3d ___, 2004 Slip Op. 04403 (Appellate Division, Third Dept., June 3, 2004).

Background

The City of Ithaca's Landmark Preservation Ordinance is set forth in Chapter 228 of the Ithaca City Code. This Chapter provides that no material change in the use or appearance of a landmark or structure, memorial or site within an historic district shall be made or permitted to be made by the owner or occupant thereof unless an alteration permit shall have been obtained, and that it is the duty of the Landmarks Preservation Commission to review all plans for any and all material changes and pass upon such plans before a permit can be granted. The Commission shall issue a certificate of appropriateness if it approves the plans.

Criteria for the issuance of a Certificate of Appropriateness are set forth in Section 228-4(E)(1)(a) of the City Code:

The proposed work in creating, changing, destroying or affecting the exterior architectural features of the improvement or site upon which the work is to be done will not have a substantial adverse effect on the aesthetic, historical or architectural significance and value of either the landmark, or, if the improvement is within a district, of the neighboring improvements in such district. In considering architectural and cultural value, the Commission shall consider whether the proposed change is consistent with the historic value and the spirit of the architectural style of the landmark or district..." (Emphasis added)

The LPC contends that the series of findings of fact adopted in its resolution (R-2) are tied to the evidence adduced at two public hearings. All of the LPC's findings are to be found in the "Shure Report." The Shure Report was prepared by Janet Shure, Preservation Director of Historic Ithaca, Inc., described as the Commission's expert witness. The factual sufficiency of this report must be reviewed for the Court to determine whether it constitutes substantial evidence of a "substantial adverse effect on the aesthetic, historical and architectural significance of the district and resource."

For the following reasons the Court determines that the Shure Report is insufficient to support the LPC's findings.

First, the Shure Report concluded that the parking lot area is a component of a "designed landscape." (R-65, 174) This conclusion is the essence of the report's assertion that a "176-car [*4]parking lot would not only destroy the integrity and design intent of this designed historic landscape, but is irreversible." (R-179) The Shure Report fails to cite any evidence that this portion of the site, comprised of overgrown brush and woods, was ever a feature of an original landscape design. Shure and her associates were unable to find any of the architect's papers. Although the report suggests that is was likely that architect Warren Manning had a direct hand in the development of the design scheme for the parcel, and that he was a historically significant architect, it appears to rely completely on an anonymous newspaper article dated November 2, 1901 which does not identify the source of its observation that "the beautiful rolling lawn...will not contain any formal gardens but will be left to nature as the best gardener." (R-175).

The LPC concedes that this article merely "raises the possibility, at least, that what is now Redbud Woods may have been contemplated in the original design." (Beer affidavit, par. 11) This appears to be the sole basis for the LPC's finding of historical or architectural significance and value of the overgrown woods.

The remainder of the Shure Report merely sets forth restatements of the historical basis for the creation of the district, or the writers' subjective observations. It offers no factual basis for the conclusion that the parking lot would have a substantial adverse impact on those portions of the site which are intact from an aesthetic, historical or architectural standpoint. Significantly, the Shure Report states that "the primary landscape elements of Landscape Architect Warren Manning's plan (the stone retaining wall, central open lawn with mature trees and carriage drive) are intact though in need of repair." (R-252). Nowhere is there evidence that the area occupied by overgrown woods was ever one of the "primary landscape elements."

Thus the Court concludes that the Shure Report does not contain factual support or rational basis for the conclusion that the parking lot would constitute a substantial adverse impact.

The remaining finding by the LPC that "the coniferous trees proposed for planting west of the Treman residences to screen views of the parking lot from University Avenue impair panoramic West Hill views that contribute to the significance of the landscape design." (R-4) is not supported by substantial evidence. Even if there was evidence that a panoramic view was originally designed, that view has been obliterated for decades. Further, the screening was required by the Planning Board during the site plan approval process. This finding bears no relationship to the LPC's determination, and demonstrates how it failed to explore how such a concern could be addressed by "reasonable conditions to mitigate negative historical impacts." Trustees of Union College, Id., at 167

The Court concludes that this evidence falls far short of the standard required for a municipality to dictate the use of private property.

For these reasons the petition is granted.

Balancing of Educational Uses & Public Interest in Historic Preservation

The public interest in historical preservation does not as a matter of law override competing educational interests, which by their very nature also are 'clearly in furtherance of the public morals and general welfare.' Trustees of Union College et al v. Members of the Schenectady City Council et al, 91 NY2d 161, 165 (1997) The decision to restrict a proposed educational use can only be made after the intended use is evaluated against other legitimate interests, with primary consideration given to the over-all impact on the public welfare; a municipality's pursuit of other legitimate objectives, such as historic preservation, does not diminish the importance of striking a balance between the important contribution made to society by educational institutions and the inimical consequences of their presence in residential neighborhoods. Id., at 166. Educational institutions are generally permitted to engage in activities and locate on their properties facilities for such social, recreational, athletic and other accessory uses as are reasonably associated with their educational purposes. Town of Islip v. Dowling College, 275 AD2d 366 (Second Dept., 2000) In Town of Islip, the Town sought a judgment declaring that catering events and driver's education classes were non-permitted uses under the Town Code; the Court held that "the activities at issue in this case are permitted educational uses of the subject property and the restrictions which the plaintiff seeks to place on these activities would be impermissible." Id., at 367, citing Matter of Diocese of Rochester v. Planning Board of Town of Brighton, 1 NY2d 508.

There can be no question that the Commission's action constitutes a significant barrier to the petitioner's furtherance of its educational purposes. Parking must be deemed a use "reasonably associated" with Cornell's educational purpose. Id. The ability of a university to modernize and adapt its campus property to meet growing and evolving needs, as it assesses those needs, must be accorded significant weight. The Commission heard, but apparently did not weigh, a detailed explanation of the petitioner's policy and planning with regard to campus parking, and the relationship this lot location would bear to activities and functions in this part of the campus. The Commission's resolutions make no acknowledgment of the significance of Cornell's need for parking as a use reasonably associated with its educational mission.

The Commission failed to provide any means whereby the petitioner's educational needs might be balanced against the public's interest in historical preservation, nor did it attempt to consider the imposition of reasonable conditions to mitigate purported historical impacts. Id. at 167. The Court of Appeals has also warned that such reasonable conditions must not "operate indirectly to exclude the use altogether." Id. Here, the Commission never attempted to fashion an accommodation of the petitioner's needs to replace parking, and essentially prohibited any alteration of the west end of the site.

The presumption that educational uses are always in furtherance of the public health, safety and morals may be rebutted by a showing that the proposed use would actually have a net negative impact. Cornell University v. Bagnardi et al., 68 NY2d 583, 589 (1986) In that case, the Court of Appeals addressed the considerations attendant to a university's expansion into a residential neighborhood and imposed a requirement to weigh the proposed use and to cushion adverse impacts with conditions that do not indirectly exclude the use altogether. Id, 596 Here, the University is [*5]not seeking to expand into the community, but wishes to use its own campus property for uses specifically allowed in the City's zoning law, to wit: education and parking.

In the Commission's resolution denying the Certificate of Appropriateness, it sets forth the items considered in its evaluation and omits any consideration of the petitioner's educational mission. (R-3) Because the LPC failed to acknowledge the legitimacy of the University's need to provide parking the Court finds that the respondent Commission acted arbitrarily and capriciously in concluding that the public's interest in preserving the integrity of an uncultivated wooded area outweighed the petitioner's interest in furthering its educational purpose. This failure is even more glaring given the lack of substantial evidence that the area occupied by this overgrown wood lot was ever a component of a designed landscape.

For this additional reason the Commission determination is reversed and annulled and the Commission is directed to issue a Certificate of Appropriateness.

For the foregoing reasons, it is hereby

ORDERED that the respondent's determination of December 18, 2003 denying the petitioner's application for a Certificate of Appropriateness is hereby reversed and annulled; and it is further

ORDERED that the respondent is hereby directed to issue a Certificate of Appropriateness to the petitioner within thirty (30) days of the date of entry of this Order.

This decision shall also constitute the order of the Court pursuant to rule 202.8(g) of the Uniform Rules for the New York State Trial Courts, and it is deemed entered as of the date below. To commence the statutory time period for appeals as of right [CPLR 5513(a)] a copy of this decision and order, with notice of entry, must be served upon all parties.

Signed this 9th day of June, 2004 at Ithaca, New York.

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ROBERT C. MULVEY, J.S.C.