NY Appellate Court Affirms Dismissal of Challenge to Town Board’s Historic Preservation Determination

This post was authored by Tyler Doan, Esq.

Petitioner, the owner of a historic theater, with an adjacent property owner, challenged the Town of Hempstead Town Board’s determination of the Petitioner’s theater as a historic landmark. The Supreme Court denied and dismissed the portions of the petition and proceeding which were pursuant to CPLR Article 78. The petitioners appealed. The Appellate Division of the Second Department affirmed the Supreme Court’s decision.

The Petitioners challenged the Town Board’s determination on three grounds. First, the Petitioners stated that the determination must be set aside because the Town Board failed to call a public hearing within 90 days of the Commission’s approval of the landmark application, as provided in the Code for the Town of Hempstead. The Appellate Division determined that the time limit at issue is directory and not required. The Court reasoned that since there are no consequences for failing to comply, there is no legislative history suggesting that the time limit is mandatory and there has been no showing of substantial prejudice, and thus the delay does not render the determination invalid.

Secondly, the Petitioners assert that since the Town Board did not make specific findings of fact, the determination should be void due to an arbitrary and capricious determination or abuse of discretion. Again, the Appellate Division denied assertion and stated that “[t]he record sufficiently established that the Theatre constitutes a “landmark” within the meaning of Code of the Town of Hempstead . . .  in that it possesses historical value and aesthetic interest by reason of its antiquity, uniqueness of architectural design, and its place within the development, heritage, and cultural characteristics of the Town of Hempstead.”

Lastly, Petitioners claimed that because two members of the Town Board had previously expressed support for the landmark application, the determination should be annulled. The Appellate Division once again denied the assertion by stating “[t]he record indicates that the Town Board’s determination flowed from the evidence presented at the public hearing rather than any alleged bias.”

989 Hempstead Turnpike, LLC v Town Board of the Town of Hempstead, 2023 WL 2778328 (NYAD 2 Dept. 4/5/2023)