This is an article 78 CPLR proceeding to review and annul a determination of the Landmarks Preservation Commission of the City of New York designating the Leonard Jerome House at 32 East 26th Street, Manhattan, as a landmark. The designation was made pursuant to chapter 8-A of the New York City Charter (Locаl Laws, No. 46 of City of New York), the declared purposes of which are, inter alia: “ to (a) effect and accomplish the protection, enhanсement and perpetuation of such improvements and of districts which represent or reflect elements of the city’s cultural, social, еconomic, political and architectural history ’ ’.
Petitioner, Manhattan Club, owner of the building which once was owned and occupied by Jеnnie Jerome, mother of the late Winston Churchill, contends that the designation constitutes a deprivation of property without due process of law in violation of the Federal and State Constitutions; a taking of private property without just compensation, and an impairment of a pre-existing contract to sell the property. In addition, it asserts that the determination was arbitrary and capricious in that the premises have no real historical interest.
Respondent’s position is that there is no taking of property without due process, since the only effect of the law is to prohibit
The structure, erected in 1859, is described by the commission as ‘ ‘ a distinguished and attractive example of the French Second Emрire Style of architecture. ’ ’ It was built for Leonard Jeróme, Jennie Jerome’s father, and occupied by his famous daughter for a number of years. It hаs been owned or occupied by the Manhattan Club since prior to 1900.
On April 22, 1965 the club contracted to sell the building for $600,000, $50,000 of which was paid on the signing of the contract and an additional $250,000 on June 21, 1965. Title was to pass on April 15, 1966. According to petitioner, the club has been losing members and opеrating at an annual loss of from $10,772.64 to $20,428.02, and there is no reasonable prospect of redressing the loss. The purchaser proposes to raze the building and erect a 33-floor office building on the site.
On September 2,1965, petitioner was first notified of a hearing to be held, respecting the proposed designation, on September 21, 1965. Both petitioner and its vendee appeared at the hearing and voiced their opposition. Petitioner also submitted written objections to the proposed designation, which was formally made on November 23, 1965, after the cоmmission had discussed the matter at two intervening meetings.
Authority for the designation of landmarks is contained in subdivision 25-a of section 20 of the General City Law which empowers the city “ Subject to the constitution and general laws of this state * * * To provide, for places, buildings, structures, works of art, and other оbjects having a special character or special historical or aesthetic interest or value, special conditions оr regulations for their protection, enhancement, perpetuation or use ”.
Pursuant to this authority, the City Council enacted chapter 8-A (Local Law No. 46 of 1965) which established the Landmarks Preservation Commission. Under that law, if the owner of the building wishes to alter, construct or demolish an architectural feature of the landmark, it must receive authorization from the
There is no merit to petitioner’s contention that the determination is unsupported by substantiаl evidence. A hearing was held and the issues thoroughly aired. The architectural, historical and aesthetic value of the improvement was fully established, and the court may not substitute its judgment for that of the administrative agency (Matter of Kilgus v. Board of Estimate of City of N. Y.,
Indeed, the highest approbation has been given to recognition of such values. In Berman v. Parker (
Petitioner’s contention that the designation has impaired rights vested in the existing contract of sale is not suрported in the record. There is no showing that its vendee has refused, or will refuse, to take under the contract or that it has suffered or is about tо suffer any loss under the contract because of the designation.
Moreover, all contracts are subject to the police pоwer of the State and * ‘ when emergency arises and the public welfare requires modification of private contractual obligations in the public interest, the question is not Avhether ‘ legislative action affects contracts incidentally, or directly or indirectly, but AAfhether the legislation is аddressed to a legitimate end and the measures taken are reasonable or appropriate to that end ’ ” (Twentieth Century Assoc. v. Waldman,
Finally, at least as it applies to petitiоner, the statute is not confiscatory. Petitioner is free to do as it pleases with the interior of the building. It is guaranteed a reasonable return оn its investment. And if no plan can be devised to materialize this guarantee, it may make such changes as it wishes.
As the court pointed out in Matter of Setauket Development Corp. v. Rorneo (18 A D 2d 825, 826 [2d Dept., 1963]): “ It is not sufficient, in order to render а zoning ordinance confiscatory and unconstitutional, that permitted uses result in lower profits, no profits, or actual loss. What must be established is thаt the ordinance precludes use of property ‘ for any purpose for which it is reasonably adapted ’ (Levitt v. Incorporated Vil. of Sands Point,
Accordingly, the application is denied and the petition is dismissed.