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Adam Leitman Bailey, P.C., Successfully Defends Challenge To Landmarks Preservation Commission’s Determination To Permit Expansion

By Adam Leitman Bailey


brooklyn park slope mansion

Adam Leitman Bailey, P.C., prevailed for its client against a legal challenge to the determination of the New York City Landmarks Preservation Commission (“Landmarks”) to approve the client’s expansion plans.  The client, a Brooklyn-based developer, acquired a historic Park Slope mansion in 2015 for $9.5 million.  The client proposed to dramatically expand the building and convert it from a single-family home into eight residential units.  The plans included adding a new floor to the top of the building that would not be visible from the street and expanding both sides of the building’s rear to fill in the lot.  Landmarks’ approval was needed to perform work on the property which is located in the Park Slope Historic District.

 When first presented to Landmarks in January 2016, the Commissioners were taken aback by the size of the proposed rear and rooftop additions.  A month later, after the client had revised its plans in coordination with its preservation architect and Landmarks staff, the Commissioners found the revised plans to be much improved and voted unanimously for approval.  Following additional coordination with Landmarks staff to further reduce the size of the expansion, the client was awarded a Certificate of Appropriateness in March 2016.

 But the real fight was only beginning.  Two months after receiving its Certificate of Appropriateness, the client’s next-door neighbor – a ten unit Coop that had led a public campaign against the client’s construction plans – commenced a challenge against Landmarks’ determination in New York County Supreme Court under Article 78, which allows for judicial review of an agency’s decision when made in violation of lawful procedure, affected by an error of law, arbitrary and capricious, or an abuse of discretion.  The owner-developer, which had been named as a co-respondent in the proceeding, turned to Adam Leitman Bailey, P.C., to defend against the challenge.

 Perhaps the most important victory took place at the outset, when the petitioner sought a stay with injunctive relief that would halt ongoing construction – a potentially fatal threat given a tight construction schedule and looming deadlines to repay construction lenders.  The Petitioner failed to give timely advance notice of when its court papers would be filed, thereby depriving Adam Leitman Bailey, P.C., of the opportunity to review the motion papers until just before the initial appearance before a judge.  Nevertheless, by using aggressive tactics including a demand for a substantial monetary undertaking that the petitioner could not afford plus a credible threat of litigation for damages against the petitioner for abuse of process, Adam Leitman Bailey, P.C., persuaded the petitioner to withdraw its application for a stay.  Construction could proceed while the proceedings continued.

 Turning to the merits, Adam Leitman Bailey, P.C., coordinated with attorneys from the New York City Corporation Counsel’s office to draft separate answers and memoranda of law in opposition to the Article 78 Petition and argued the matter before the Supreme Court.  The result?  Within 30 days of oral argument, the Court denied all the relief sought by the petitioner and dismissed the proceeding.  As argued by Adam Leitman Bailey, P.C., the Court ruled that it must defer to the expertise of Landmarks and the aesthetic and architectural judgments made by the Commissioners concerning the various elements of the client’s approved plans.  The Court also rejected the petitioner’s many procedural and constitutional arguments as having no merit, and found that the owner-developer would be greatly prejudiced if forced to cease construction already in process.  The client anticipates marketing the new residential units shortly.

Adam Leitman Bailey, Jeffrey R. Metz, and Scott J. Pashman represented the owner-developer on behalf of Adam Leitman Bailey, P.C.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS