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Decided on June 9, 2004
Supreme Court, Tompkins County
CORNELL UNIVERSITY, Petitioner,
against
DAVID BEER, NANCY FALCONER, HELEN SNYDER, BYRON
SUBER, NANCY BRCAK, JONATHAN MARTIN, and KATHLEEN
FOLEY, Constituting the ITHACA LANDMARKS PRESERVATION
COMMISSION OF THE CITY OF ITHACA, NEW YORK, the
ITHACA LANDMARKS PRESERVATION COMMISSION OF THE
CITY OF ITHACA, NEW YORK, and the CITY of ITHACA, NEW
YORK, Respondents.







2004-269
James J. Mingle, Esq. Nelson E. Roth, Esq. Shirley K. Egan, Esq. Stephanie A. Sechler, Esq.
Office of University Counsel Attorneys for Petitioner Cornell University Ithaca, NY 14853-2601 Martin A. Luster, Esq. Patricia Dunn, Esq. Office of the City Attorney Attorneys for Respondents 108 East Greet Street Robert C. Mulvey, J.
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.

BACKGROUND
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]
DISCUSSION
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

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