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holding that decision was not final "until plaintiff has sought and the Commission has granted or denied a certificate of appropriateness or other approval . . . ."
Summary of this case from Orthodox Jewish Coal. Ridge v. Vill. of Chestnut RidgeOpinion
Argued February 4, 1986
Decided June 5, 1986
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Robert E. White, J.
Frank Patton, Jr., and William Leibovitz for appellant.
Frederick A.O. Schwarz, Jr., Corporation Counsel (Edward F.X. Hart and Larry A. Sonnenshein of counsel), for respondents.
In this appeal in a declaratory judgment action we address a preliminary legal question: whether the claim that the Landmarks Law is unconstitutional as applied to plaintiff, the Church of St. Paul and St. Andrew, is ripe for judicial determination. Plaintiff's church, the attached parish house and its separate parsonage are located at West End Avenue and 86th Street in Manhattan. Because of the long-continued disrepair of the church, the expense of maintaining and heating it, and its meager financial resources, plaintiff had developed a rebuilding program which included plans for the complete renovation of the church and the construction of a commercial high-rise condominium on part of the property. Its claim stems from the designation on November 24, 1981 of its church and parish house as a landmark by the New York City Landmarks Preservation Commission.
The New York City Landmarks Preservation Law (Administrative Code of City of New York, ch 8-A, § 205-1.0 et seq.) is referred to as the Landmarks Law. The agency which administers the Landmarks Law is the New York City Landmarks Preservation Commission (referred to herein as the Commission) established pursuant to New York City Charter § 534. In addition to the individual members of the Commission, the members of the Board of Estimate of the City of New York and the City of New York are included as defendants.
The Commission designated plaintiff's church a landmark on November 24, 1981, noting that it is a "brilliant exemplar of the eclecticism that spread through American architecture in the late 19th century" representing a fusion of Early Christian, German Romanesque and Italian Renaissance styles. The New York City Board of Estimate approved the designation on March 18, 1982. Plaintiff does not challenge the landmark designation per se. Five days after the Board of Estimate's approval of the designation, plaintiff commenced the instant action pursuant to 42 U.S.C. § 1983 (Civil Rights Law) and CPLR 3001 seeking a declaration that the Landmarks Law was unconstitutional as applied to it, an injunction and damages.
Plaintiff does not question the facial validity of the statute. (The Landmarks Law has withstood constitutional challenge; see, Penn Cent. Transp. Co. v City of New York, 42 N.Y.2d 324, 330, affd 438 U.S. 104.) Rather, it contends that the Landmarks Law, as applied to it by virtue of the Commission's designation, effects a "taking" of property without due process or just compensation and interferes with the free exercise of its religion in contravention of various provisions of the Federal and New York State Constitutions (see, US Const 1st, 5th and 14th Amends; N Y Const, art I, §§ 3, 7). Plaintiff's complaint contains the allegations which this court has recognized as necessary for a charitable organization claiming an unconstitutional application of the Landmarks Law — i.e., that the statute, as applied, physically or financially prevents or seriously interferes with the carrying out of the charitable purpose (see, Matter of Society for Ethical Culture v Spatt, 51 N.Y.2d 449, 454-455; Lutheran Church v City of New York, 35 N.Y.2d 121, 131; Matter of Trustees of Sailors' Snug Harbor v Platt, 29 A.D.2d 376, 378).
On defendants' motion for summary judgment, Supreme Court dismissed the declaratory judgment action as not ripe, without prejudice to appropriate proceedings after completion of the Landmarks Law's administrative processes. The Appellate Division affirmed unanimously, without opinion ( 110 A.D.2d 1095), and we granted leave to appeal ( 65 N.Y.2d 606).
For reasons stated herein we conclude, as did the courts below, that until plaintiff's rebuilding plans are considered by the Commission pursuant to the various ameliorative provisions in the Landmarks Law, the issue presented — whether the alleged interference with plaintiff's ability to carry out its charitable purpose amounts to a constitutional injury — is not ripe for judicial determination. The order of the Appellate Division should, therefore, be affirmed.
I
Recognizing the need for a comprehensive scheme to encourage the preservation of buildings and areas with historic or aesthetic importance, New York City adopted its Landmarks Preservation Law in 1965 (see, Administrative Code of City of New York, ch 8-A, § 205-1.0 et seq.). The pertinent provisions of the law may be briefly summarized. The primary responsibility for administering the law is vested in the Commission, which must include at least three architects, one historian, one city planner or landscape architect, one realtor, and at least one resident of each of the city's five boroughs (see, New York City Charter § 534). The Commission initially identifies properties and areas that have "a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation" (see, Administrative Code § 207-1.0 [h]). If the Commission determines, after giving all interested parties an opportunity to be heard, that a building or area satisfies the statute's criteria, it will designate a building to be a "landmark" (§ 207-1.0 [n]), situated on a particular "landmark site" (§ 207-1.0 [o]), or will designate an area to be an "historic district" (§ 207-1.0 [h]). New York City's Board of Estimate may then modify or disapprove the designation, and the owner may seek judicial review of the final decision.
Final designation as a landmark imposes certain restrictions and obligations upon an owner of a landmark site. First, the statute requires that the exterior features of the building be kept "in good repair" (see, § 207-10.0 [a]). Violation of the maintenance and repair requirements subjects an owner to a fine of not more than $250 and not less than $25, or to imprisonment for not more than 30 days, or both (see, § 207-16.0 [b]). Second, the owner must apply to the Commission for advance approval of any proposal to alter the exterior architectural features of the landmark or to construct any exterior improvement (see, §§ 207-4.0 — 207-9.0).
Three separate procedures are available through which an owner may apply for administrative approval to alter a landmark site. First, the owner may apply to the Commission for a "certificate of no effect on protected architectural features", an order permitting the alteration on the ground that it will not change or affect any architectural feature of the landmark (see, § 207-5.0). Second, the owner may apply to the Commission for a certificate of "appropriateness" (see, § 207-6.0). The Commission must, with certain limited exceptions, act upon the application for such certificate within 90 days (see, § 207-7.0). It must grant the certificate if it concludes that the proposed construction on the landmark site "would be appropriate for and consistent with the effectuation of the purposes" (§ 207-6.0) of the Landmarks Law. Denial of either certificate is subject to judicial review. The third and final procedure — the so-called "hardship procedure" (certificate of appropriateness on the ground of "insufficient return", § 207-8.0) — provides additional options, which are for the most part limited to owners of commercial sites.
The procedure under Administrative Code § 207-8.0 (a) (2) — available only to owners of tax-exempt properties who can satisfy four preconditions — is not applicable here. The Commission argues that, where a tax-exempt owner of a landmark site is unable to meet the preconditions, it may nevertheless make a preliminary finding of insufficient return applying the so-called judicial hardship test set forth in Matter of Trustees of Sailors' Snug Harbor v Platt ( 29 A.D.2d 376, 378) and subsequently adopted by this court in Lutheran Church v City of New York ( 35 N.Y.2d 121, 131), and Matter of Society for Ethical Culture v Spatt ( 51 N.Y.2d 449, 454-455). Because plaintiff has never sought initial Commission approval of its rebuilding program by applying for a certificate of appropriateness (see, § 207-6.0), we do not consider the issue, discussed at some length in the dissent (dissenting opn, at pp 534-535), whether the Commission has this power.
II
In its complaint, plaintiff does not, unlike petitioners in Ethical Culture (supra), Lutheran Church (supra) and Sailors' Snug Harbor (supra), base its claim of injury on being compelled by the Landmarks Law to maintain and retain an unsuitable building which it wants to demolish. Here, plaintiff does not plan to replace the designated landmark. On the contrary, it proposes to renovate the church structure under a rebuilding program with a private partner, which includes a separate development for a commercial high-rise condominium.Plaintiff alleges that its severely deteriorating church, built to seat a congregation of 1,400, is unsuitable and far too large for its current membership. Because the financial burdens of maintaining, repairing and heating the structure had become more than its small congregation could bear, plaintiff, in the years preceding the Commission's designation on November 24, 1981, had consulted with various developers and architects for the purpose of devising a rebuilding program "to provide a new building with appropriate facilities and income for plaintiff's continuing religious and charitable program, thereby assuring its survival." In its complaint plaintiff asserts that the Commission made the designation over its objection for the purpose of preventing its building plan and that, as a result, it "is now prevented from altering or reconstructing its church building without permission of the Commission". In addition, plaintiff alleges that the designation subjects it to the immediate repair and maintenance requirements of the Landmarks Law (§ 207-10.0) which it cannot afford to fulfill and which, if not complied with, expose it to criminal sanctions (§ 207-16.0).
Although it alleges that the landmark designation was intended to prevent it from carrying out its renovation program, plaintiff has never applied for a certificate of appropriateness (see, § 207-6.0) or sought other approval of its plans from the Commission. Indeed, from its own formulation of the issue in its brief on appeal, it is evident that at the root of plaintiff's claim of injury is its aversion to ceding any control of the building program to the Commission — not its concern over ultimate approval of the program by the Commission.
Plaintiff frames the central issue in its brief as follows: "The dispute in this case is not whether this decaying church structure is architecturally significant. Instead, the dispute is whether — after appellant has shown that its extreme financial and physical hardship blocks its fulfillment of its religious and charitable purposes — the Church must then surrender control over rebuilding to the Landmarks Preservation Commission in order for the Church to survive — in effect, to buy its survival by giving over to the Commission control of the new structure." (Appellant's brief, at 7 [emphasis added].)
Defendants' answer initially included failure to exhaust administrative remedies as an affirmative defense. When they moved for summary judgment defendants were permitted to substitute lack of ripeness for the defense of exhaustion of remedies. The affidavits in support of defendants' motion centered on the Landmarks Law's comprehensive scheme of regulatory options under which an owner can apply to the Commission for permission to alter, reconstruct or demolish a landmark site. In his affidavit, Commission chairman, Gene A. Norman, stressing the Commission's willingness to accommodate plaintiff's needs, stated: "If plaintiff were to submit an application for a certificate of appropriateness or a notice to proceed containing a specific proposal for the Church which meets the criteria of either appropriateness under § 207-6.0 or hardship under § 207-8.0 or the judicially-created hardship test, the Commission will grant the approval or relief as provided in the statute, which may include permission to alter, reconstruct or demolish all or a portion of the designated improvement."
Defendant sought summary judgment upon the ground that plaintiff's complaint did not state a cause of action and that no triable issues of fact were presented, as well as on the ground of ripeness. Supreme Court treated only the latter issue and did not discuss the merits of plaintiff's complaint.
Defendants also submitted affidavits of two architects describing rebuilding plans submitted to plaintiff's board of trustees in 1980 in which the exterior walls on both West End Avenue and 86th Street and the bell tower at that corner would be retained and the interior of the church rebuilt as a much smaller sanctuary. The plans included a high-rise condominium tower near the eastern portion of the site. Both architects express the belief that the Commission might approve such proposal or one similar to it which would preserve much of the existing facade and permit the erection of a commercial structure. Plaintiff has not refuted either the Commission chairman's affidavit or the affidavit of either architect.
III
It is basic that a court should decline to apply the discretionary relief of declaratory judgment (CPLR 3001; James v Alderton Dock Yards, 256 N.Y. 298) to "administrative determinations unless these arise in the context of a controversy 'ripe' for judicial resolution" (Abbott Labs. v Gardner, 387 U.S. 136, 148). The ripeness doctrine and the related rule that there must be "an actual controversy between genuine disputants with a stake in the outcome" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3001:3, p 356) serve the same purpose: "to conserve judicial machinery for problems which are real and present or imminent, not to squander it on abstract or hypothetical or remote problems" (4 Davis, Administrative Law § 25:1, at 350 [2d ed]). Consistent with this general purpose we dismissed a declaratory judgment action involving the constitutionality of a statute because of the possibility that the statute would be defeated in the approaching referendum and never become law, stating that "courts should not perform useless or futile acts". (New York Public Interest Research Group v Carey, 42 N.Y.2d 527, 530.) In Matter of New York State Inspection, Sec. Law Enforcement Employees v Cuomo ( 64 N.Y.2d 233) we restated the rule that a claim based on an injury which might never occur should be dismissed, holding that the petition of prison guards attacking plans to close a correctional facility was not ripe, because "the harm sought to be enjoined [was] contingent upon events which may not come to pass" (id., at p 240).
The particular ripeness question before us arises in a declaratory judgment action where it is claimed that constitutional harm has resulted from the application of a statute by an administrative agency. In a trilogy of decisions in declaratory judgment actions brought by drug companies to review the validity of certain administrative regulations (Abbott Labs. v Gardner, 387 U.S. 136, supra; Toilet Goods Assn. v Gardner, 387 U.S. 158; Gardner v Toilet Goods Assn., 387 U.S. 167), the Supreme Court used a two-part analysis for determining whether a preenforcement challenge to an administrative regulation is ripe for judicial review. It is necessary, the court stated, "first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied" (387 US, at p 162; see, 4 Davis, op. cit. § 25:6, at 368, 369). We find this two-part analysis apt and particularly helpful in resolving the question here.
The "appropriateness" inquiry looks to whether the administrative action being reviewed is final and whether the controversy may be determined as a "purely legal" question (see, Abbott Labs. v Gardner, supra, at p 149; Toilet Goods Assn. v Gardner, supra, at p 163). The concept of finality requires an examination of the completeness of the administrative action and a pragmatic evaluation of whether the "decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury" (Williamson County Regional Planning Commn. v Hamilton Bank, 473 US ___, 105 S Ct 3108, 3120; see, Abbott Labs. v Gardner, supra, at pp 150-152; Toilet Goods Assn. v Gardner, 387 US, at pp 162, 163; United States v Storer Broadcasting Co., 351 U.S. 192, 198; 4 Davis, op. cit. § 25:6, at 369). In New York Stock Exch. v Bloom ( 562 F.2d 736), for example, the Circuit Court for the District of Columbia found that the position taken by the Comptroller in certain opinion letters was not final and not appropriate for judicial review under the Abbott Labs. analysis because the opinions were tentative in nature and subject to change (id., at p 741). Even if an administrative action is final, however, it will still be "inappropriate" for judicial review and, hence, unripe, if the determination of the legal controversy involves the resolution of factual issues (see, New York Stock Exch. v Bloom, supra, at p 741) or consideration of extraneous problems or factors beyond the legal question presented (see, Toilet Goods Assn. v Gardner, supra, at p 163; see also, Babbitt v Farm Workers, 442 U.S. 289, 303-304, where issue of validity of access provision of a farm labor statute was not appropriate for judicial determination since it called for consideration of factors yet unknown).
The second part of the inquiry requires an evaluation of "the hardship to the parties of withholding [or granting] court consideration" (Abbott Labs. v Gardner, supra, at p 149). The effect on the administrative agency and its program and the need for judicial economy should be taken into account as well as the degree of hardship to the challenging party (4 Davis, op. cit. § 25:6, at 369). Essentially, this inquiry, from the standpoint of the challenging party, entails an examination of the certainty and effect of the harm claimed to be caused by the administrative action: whether it is "sufficiently direct and immediate" (Abbott Labs. v Gardner, supra, at p 152) and whether the action's "effects [have been] felt in a concrete way" (id., at p 148). If the anticipated harm is insignificant, remote or contingent (see, Matter of New York State Inspection, Sec. Law Enforcement Employees v Cuomo, 64 N.Y.2d, at p 240, supra) the controversy is not ripe.
A fortiori, the controversy cannot be ripe if the claimed harm may be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. Recent decisions of the Supreme Court illustrate this rule. (See, Williamson County Regional Planning Commn. v Hamilton Bank, supra; Hodel v Virginia Surface Min. Reclamation Assn., 452 U.S. 264; Agins v Tiburon, 447 U.S. 255.) In Williamson County Regional Planning Commn. (supra), for example, the court held that the plaintiff's claim that zoning laws had effected a taking of its property was not ripe because plaintiff had not sought variances which would have allowed it to develop the property; and in Hodel v Virginia Surface Min. Reclamation Assn. (supra), the court rejected as premature plaintiff's claim that a Federal mining control statute was unconstitutional, stating: "If [the property owners] were to seek administrative relief under these procedures, a mutually acceptable solution might well be reached with regard to individual properties, thereby obviating any need to address the constitutional questions. The potential for such administrative solutions confirms the conclusion that the taking issue decided by the District Court simply is not ripe for judicial resolution" (452 US, at p 297 [emphasis added, n omitted]). Similarly, in Toney v Reagan ( 467 F.2d 953, 956-957, cert denied sub nom. Mabey v Reagan 409 U.S. 1130), the court held that the complaint of college professors allegedly threatened with discharge for advocating various causes and protesting the Viet Nam War should not be heard on the merits because plaintiffs had not attempted to avert the discharge through the administrative remedies at hand.
The ripeness requirement that a plaintiff must make use of available administrative means to forestall the alleged harm should not be confused with the requirement that administrative remedies must be exhausted before an action may be judicially reviewed (see, Williamson County Regional Planning Commn. v Hamilton Bank, 473 US, at p ___, 105 S Ct, at p 3120, supra). Ripeness pertains to the administrative action which produces the alleged harm to plaintiff; the focus of the inquiry is on the finality and effect of the challenged action and whether harm from it might be prevented or cured by administrative means available to the plaintiff. The focus of the "exhaustion" requirement, on the other hand, is not on the challenged action itself, but on whether administrative procedures are available to review that action and whether those procedures have been exhausted (see, Williamson County Regional Planning Commn. v Hamilton Bank, 473 US, at p ___, 105 S Ct, at p 3120, supra).
Because defendants are asserting lack of ripeness as a defense — not failure to exhaust administrative remedies — we need not address plaintiff's argument concerning the applicability of the exhaustion defense to an action brought under 42 U.S.C. § 1983 (see, Patsy v Florida Bd. of Regents, 457 U.S. 496). See also, Toney v Regan ( 467 F.2d 953), in which the court, in holding that "prospective, as distinguished from retrospective, state administrative remedies" need not be exhausted in an action under the Federal Civil Rights Law, noted that the "grievance procedures in this case would not operate to rectify a wrong which had already occurred. Rather, they were a means of forestalling a threatened deprivation of rights which was not to transpire for several months. In the event that appellants were to utilize the state hearing procedures, they might successfully reverse the decision not to reemploy them, have their contracts renewed, and suffer no break in their employment" ( 467 F.2d 953, 956 [emphasis added]).
IV
We turn to whether plaintiff's claim of constitutional harm is ripe. Plaintiff, we must repeat, does not directly challenge or seek to review the Commission's act of designating its property as a landmark. The claim is that the Landmarks Law, as made applicable to plaintiff by virtue of the designation, is unconstitutional because of the effect of that statute in obstructing or interfering with plaintiff's rebuilding program and subjecting plaintiff to immediate repair and maintenance requirements which carry criminal sanctions. For several reasons, the controversy is not ripe.Under the first Abbott Labs. inquiry, we find that the issue presented is not "appropriate" for judicial review. Neither the finality requirement nor the requirement that the issue be "purely legal" is met. Finality is lacking because the effect on plaintiff of being subjected to the Landmarks Law — the basis of its claim — is incomplete and undetermined. The effect cannot be measured until plaintiff has sought and the Commission has granted or denied a certificate of appropriateness (Administrative Code § 207-6.0) or other approval of its rebuilding program. Until the Commission acts, it simply cannot be said that the administrative agency has taken a definitive position "that inflicts an actual, concrete injury" (Williamson County Regional Planning Commn. v Hamilton Bank, supra, at p ___, at p 3120).
Likewise, it is clear that the requirement that the issue presented be "purely legal" is not satisfied. Plaintiff does not present the legal question of whether the Landmarks Law is invalid facially. The question is whether it is invalid in its particular application. The ultimate resolution of this constitutional issue — i.e., whether the Landmarks Law, as applied, prevents or seriously interferes with plaintiff's ability to carry out its charitable purpose (Matter of Society for Ethical Culture v Spatt, 51 N.Y.2d 449, 454, 455, supra) — will require a careful examination of facts not yet developed pertaining to plaintiff's financial situation and to whatever action the Commission takes with respect to plaintiff's rebuilding program.
Neither does plaintiff make the second showing required under Abbott Labs.: that the impact of the administrative action be "direct and immediate" (Abbott Labs. v Gardner, 387 US, at p 152, supra) and "felt in a concrete way" (id., at p 148). Indeed, as yet, there can be no such harm for there has been no interference. (Compare, Matter of Society for Ethical Culture v Spatt, supra; Lutheran Church v City of New York, supra; and Matter of Trustees of Sailors' Snug Harbor v Platt, supra, where the owners claimed immediate and irremediable injury from being forced to maintain outmoded and costly landmarked buildings which they sought to replace.) How much, if any, of plaintiff's rebuilding program will be thwarted and whether and to what extent it will suffer resultant constitutional harm cannot be known until the Commission acts on plaintiff's request for approval of its plans. Nor can plaintiff claim direct and immediate harm from the imposition of the Landmarks Law's repair and maintenance requirements. The plans, which it refuses to submit to the Commission for approval, include renovation of the interior and exterior of the church and would, if approved, result in compliance with the very statutory requirements plaintiff contends the Commission's designation causes it to violate.
Finally, plaintiff's declaratory judgment action cannot be ripe to the extent that it is based on plaintiff's claim of constitutional injury from being theoretically subject to criminal sanctions for noncompliance with the Landmarks Law's repair and maintenance requirements (see, Landmarks Law §§ 207-10.0, 207-16.0). Plaintiff does not allege that these requirements have been enforced, and nothing in the record suggests that imposition of criminal sanctions has been threatened or even intimated. Moreover, as noted, plaintiff's claim will require a resolution of factual issues. Where, as here, a claim of unconstitutional application of a criminal statute involves factual as well as legal questions, we have held that it should be determined within the criminal proceeding itself (see, Kelly's Rental v City of New York, 44 N.Y.2d 700, 702; New York Foreign Trade Zone Operators v State Liq. Auth., 285 N.Y. 272; Reed v Littleton, 275 N.Y. 150; 3 Weinstein-Korn-Miller, N Y Civ Prac ¶ 3001.06k [1985]).
We conclude, then, that regardless of the theory on which plaintiff proceeds, its constitutional claim does not present an issue that is ripe for judicial determination.
V
The question remains whether our decision on the ripeness issue should be different because plaintiff is a church and bases its constitutional claim in part on prospective interference with its right of free exercise of religion (see, US Const 1st Amend; N Y Const, art I, § 3). We think not.
We recognize that religious institutions "enjoy a constitutionally protected status which severely curtails the permissible extent of governmental regulation in the name of the police powers" (Matter of Westchester Reform Temple v Brown, 22 N.Y.2d 488, 496) and that courts have declined to enforce zoning ordinances, for example, where the restrictions, if enforced, would prohibit or directly impinge upon religious uses (see, Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, 38 N.Y.2d 283, 287-289; Matter of Westchester Reform Temple v Brown, 22 N.Y.2d 488, 493, 496, supra; Matter of Diocese of Rochester v Planning Bd., 1 N.Y.2d 508). But no such direct impingement is involved. The ultimate effect, if any, on plaintiff's religious activities will be not direct, but purely consequential and, moreover, contingent on future developments. In any event, the merits of the constitutional claim are not before us.
We note that, once a claim is ripe for judicial review, the test for proving a constitutional claim originally articulated in Sailors' Snug Harbor applies. Regardless of whether a religious institution or a charitable organization is involved the test is the same. The plaintiff must show that maintenance of the landmark either physically or financially prevents or seriously interferes with carrying out the charitable purpose (see, Matter of Society for Ethical Culture v Spatt, 51 N.Y.2d 449, 455; Lutheran Church v City of New York, 35 N.Y.2d 121, 131; Matter of Trustees of Sailors' Snug Harbor v Platt, 29 A.D.2d 376, 378). We note also that, although Lutheran Church involves a claim of unconstitutionality of the Landmarks Law by a religious organization, the opinion does not refer to the First Amendment.
Irrespective of plaintiff's status as a church, the ultimate determination of the constitutional issue must depend on future developments and particularly on what action the Commission takes with respect to plaintiff's renovation plans. (Compare, Babbitt v Farm Workers, 442 U.S. 289, 301-302, supra, and Epperson v Arkansas, 393 U.S. 97, where statutes were attacked facially for unlawfully restricting speech [Babbitt] and as violative of the establishment clause [Epperson].) What plaintiff must prove to establish its constitutional claim as a charity under the established standard (see, Matter of Society for Ethical Culture v Spatt, 51 N.Y.2d 449, 455, supra) is neither dependent upon nor peculiar to its religious character. Plaintiff's claim — founded on alleged interference with its building program and its inability to afford the repair requirements of the Landmarks Law — takes on incidental First Amendment overtones only because it is a church. That fact is simply not germane to the ripeness issue here.
The test originally articulated in Sailors' Snug Harbor is as follows: "The criterion for commercial property is where the continuance of the landmark prevents the owner from obtaining an adequate return. A comparable test for a charity would be where maintenance of the landmark either physically or financially prevents or seriously interferes with carrying out the charitable purpose" ( 29 A.D.2d 376, 378 [emphasis added]).
We have found no case dealing with the precise issue presented: whether the ripeness doctrine should be applied differently because the complaint involves a First Amendment violation. We note, however, that the complaint of unlawful discharge of the college professors in Toney v Reagan ( 467 F.2d 953, cert denied sub nom. Mabey v Reagan, 409 U.S. 1130 [see, n 5, supra]), was based squarely on the alleged violation of their rights of free speech under the First Amendment. In holding that the controversy was not ripe for adjudication because of plaintiff's failure to utilize prospective administrative remedies to avert their discharge, the court did not discuss the First Amendment consideration or suggest that it had any relevance to its decision. Nothing in our holding on ripeness in People ex rel. Arcara v Cloud Books ( 65 N.Y.2d 324), is contrary to our holding here. Arcara entailed legal questions concerning the District Attorney's interpretation of the statute as applied to a bookstore and whether, if so applied, the statute was unconstitutional as permitting a prior restraint. Unlike the case before us, the resolution of these issues did not involve factual questions. Moreover, the effect of the statute on the bookstore and its customers was direct and immediate because "the District Attorney [was] actually seeking to obtain the very result [i.e., the actual closure of the store] which defendant assert[ed] would be unconstitutional" (65 N.Y.2d, at p 328, n 3).
In sum, unless a special exception to the ripeness doctrine is to be created, plaintiff's status as a religious organization has no relevance. Because we find no justification for such exception, we conclude that the issue presented is not ripe for judicial determination and that it was a proper exercise of discretion to dismiss the declaratory judgment action without prejudice to being renewed after the Commission has acted on plaintiff's application for a certificate of appropriateness (Landmarks Law § 207-6.0) or for other ameliorative relief. That disposition, we believe, will promote judicial economy and spare the parties a potentially lengthy and expensive round of litigation which could turn out to be unnecessary. It will also further the purpose of the Landmarks Law and promote the interest of the public and the Commission by avoiding unnecessary delay in preserving a deteriorating building of unquestioned architectural significance. The order of the Appellate Division should be affirmed, with costs.
Chief Judge WACHTLER and Judges KAYE and TITONE concur with Judge HANCOCK, JR.; Judge MEYER dissents and votes to reverse in a separate opinion in which Judges SIMONS and ALEXANDER concur.
Order affirmed, with costs.
Because the majority's misconceptions accord the Commission a position to which neither the Constitution nor statute entitles it and which impinges upon First Amendment rights, I respectfully dissent.
As the church contends, the basic issue confronting the court is which is to be preferred — religious freedom or the exercise of the police power in furtherance of architectural and cultural interests. First Amendment rights clearly are not absolute, but just as clearly, "freedom of religion [is] in a preferred position" (Murdock v Pennsylvania, 319 U.S. 105, 115). As between the free exercise of religion and the aesthetic and community values involved in landmark preservation, the latter is "outweighed by the constitutional prohibition against the abridgement of the free exercise of religion and by the public benefit and welfare which is itself an attribute of religious worship in a community" (Matter of Westchester Reform Temple v Brown, 22 N.Y.2d 488, 496).
Yet by construing the certificate of appropriateness provision of Administrative Code of City of New York § 207-6.0 more broadly than has the Commission itself, and ignoring the Commission's arrogation to itself, as part of the hardship procedure established by section 207-8.0, of the "judicial rule" established by Matter of Society for Ethical Culture v Spatt ( 51 N.Y.2d 449); Lutheran Church v City of New York ( 35 N.Y.2d 121) and Matter of Trustees of Sailors' Snug Harbor v Platt ( 29 A.D.2d 376), the majority gives the Commission greater power than accorded it by statute or prior judicial decision and in so doing subordinates religious freedom to a secular purpose of lesser importance.
I
The Church of St. Paul and St. Andrew is located on a 150-foot by 125-foot plot at the corner of West End Avenue and 86th Street in Manhattan. Situated on the plot are the church and attached parish house and a separate parsonage or rectory. In January 1980, it was notified by the Landmarks Preservation Commission that it was being considered for possible landmark designation. In opposition to the proposed designation, the church, by its then board chairman, informed the Commission that any designation would render the church insolvent and would likely cause its dissolution because the cost of repairs, as well as the continuing maintenance legally required by the landmark designation, would be impossible to meet and would bankrupt the church by 1981. Notwithstanding that opposition the Commission on November 24, 1981, designated the church and parish house, but not the rectory, an official New York City landmark. Although the designation remained subject to Board of Estimate approval, the letter by which the church was notified of the designation stated that the designation was "in full force and effect from and after the date of the adoption thereof by the commission." Despite the church's similar presentation to the member of the Board of Estimate, that body approved the designation on March 18, 1982.
The affidavit of the Commission chairman states that only the exterior of the church and parish house were designated. The designation as contained in the record before us, however, reads "designates as a Landmark the Church of St. Paul and St. Andrew".
New York City Administrative Code § 207-2.0 (e) so provides, subject to review by the City Planning Commission and the Board of Estimate.
On June 23, 1982, the church began the present action against the city, the members of the Commission and the members of the Board of Estimate, seeking a declaratory judgment that as applied to it the Landmarks Preservation Law is unconstitutional and an injunction against any action to enforce the designation, as well as damages and attorneys' fees pursuant to 42 U.S.C. § 1983 and 1988. The complaint alleged that the designation financially and physically prevented or seriously interfered with "the carrying out of plaintiff's religious and charitable purposes" because of the provisions of the Landmarks Preservation Law (Administrative Code §§ 207-10.0, 207-16.0 [b]) which imposed immediate and mandatory exterior maintenance obligations on all designated landmarks and imposed criminal penalties for noncompliance. Both the duty to make immediate necessary repairs and the continuing obligation to meet the "good repair" provisions of the Landmarks Law, it was alleged, violated the plaintiff's constitutional right to the free exercise of religion and constituted a "taking" of its property without due process or just compensation.
Defendants moved for summary judgment, asserting, among other grounds, lack of ripeness, and submitted affirmations in support of the motion which pointed to the alternatives available to a designee under the Landmarks Law provisions for a certificate of appropriateness (Administrative Code § 207-6.0), by way of a hardship application (§ 207-8.0) and under what was referred to as "the judicially-created test for hardship set forth in Society for Ethical Culture v Spatt, 51 N.Y.2d 449 (1980), Lutheran Church v City of New York, 35 N.Y.2d 121 (1974) and Sailors' Snug Harbor v Platt, 29 A.D.2d 376 (1st Dep't 1968)." They included affidavits of architects concerning possible alterations of the church and parsonage, and an affidavit of the Commission chairman noting that the Commission had not sought either through civil or criminal proceedings to enforce the repair requirements of Administrative Code §§ 207-10.0 and 207-16.0. The latter affidavit also referred to cases in which hardship applications had been granted by the Commission but stated that it was without statutory authorization to consider the alternatives referred to above as a part of the designation proceeding under Administrative Code § 207-2.0 as the church had sought to have done.
The church's affidavits in opposition noted that although the sanctuary was designed to seat 1,400 worshippers and during the first half of the century had been filled to capacity, its membership in 1981 was approximately 250, of whom only 100 were regular Sunday worshippers. As a result, the congregation is dwarfed by the large sanctuary, which frequently cannot be used because of the prohibitive cost of heating the space.
In relation to the physical and financial condition of the church, the affidavits presented the following data: The heating bill, which was $11,400 in 1974, had advanced in 1979 to $22,500 and in 1982 totaled $34,000. Heating expense plus $9,000 for insurance and $3,000 for emergency repairs in 1982 consumed 70% of all pledges, donations and loans by members of the congregation for that year. Physically, the condition of the building is deteriorating. The Sunday school rooms are inadequate and space is lacking for retreats, seminars and other religious and charitable programs. The balcony of the sanctuary has been closed because it deteriorated to the point of being too dangerous for use. The plumbing facilities are "decrepit," lighting is poor and there are no elevators for handicapped individuals. As for the exterior, extensive repairs to the roof and masonry are required. Falling stones and masonry fragments are a danger to pedestrians. In addition, leaks in the roof drainage system have rotted large sections of wall. In 1980, it was estimated that exterior repairs in the amount of $250,000 were required. When this action was commenced in 1982, that estimate had risen to $350,000. Other than the buildings and land and a small endowment of approximately $35,000, there are few assets. The church operates with annual pledge income and donations from its membership together with other contributions, which totaled approximately $60,000 in 1982 and barely met the most necessary of salary and maintenance expenses.
In view of its fiscal situation the church established a committee on future alternatives in 1975. A real estate consultant was engaged in an effort to develop a plan that would provide both suitable church facilities and an income source that would ensure the continuation of both its congregational and charitable programs. By August 1980, a proposed plan had been devised that would retain the exterior walls of the church fronting on 86th Street and West End Avenue and the octagonal tower at the corner, but not the square tower at the north end of the front facade or its third story and hip roof, and which would replace the remainder of the building with a new smaller sanctuary and an apartment complex at the rear of the building. It was not pursued, however, after the Commission informed the church that its landmark designation was under consideration. Based on the foregoing data and the repair and maintenance obligations imposed by the law, the church argued that the procedures provided for by statute were inapplicable, that the so-called "judicial" alternatives were not within the competence of the Commission and were ripe for judicial review because the designation with its immediate maintenance and repair obligations prevented or seriously interfered with its ability to carry on its religious and charitable purposes.
Supreme Court noted that "defendants have tacitly conceded that the Church's claims of financial hardship appear well-founded," that the church's proposed plan would require demolition of exterior walls other than those fronting on 86th Street and West End Avenue and that the church's fear that by applying for administrative relief it would lose the right to control reconstruction of its building was not illogical. It concluded, however, that the interior of the buildings not having been landmarked, it was plaintiff's lack of funds, rather than the landmark designation, that was interfering with the carrying out of the church's religious and charitable activity and that, therefore, the Commission must be given the opportunity to devise alternatives before resort to judicial action was appropriate. Because it found the matter not ripe for adjudication, it dismissed the complaint without prejudice to appropriate proceedings after completion of the administrative process, but directed the Commission to provide for expedited consideration of any application made to it. The Appellate Division affirmed, without opinion.
Defendants' brief disclaims such a concession, but for purposes of defendant's summary judgment motion the church's claims, not having been controverted in defendant's reply affidavit, must be accepted as true.
II A
Although the facial validity of the New York City Landmarks Preservation Law as a proper exercise of the police power to preserve the cultural, architectural, historical or social significance of designated properties is beyond question (Penn Cent. Transp. Co. v City of New York, 42 N.Y.2d 324, 330, affd 438 U.S. 104), the constitutionality of its application to a particular parcel turns in part upon the use of the property by its owner. When that use is secular, even though by a religious or charitable organization, the governing standard is that the owner not be deprived of a reasonable return on his property (Matter of Society for Ethical Culture v Spatt, 51 N.Y.2d 449, 454, 456, supra; Penn Cent. Transp. Co. v City of New York, supra; see, Matter of Spears v Berle, 48 N.Y.2d 254, 262; French Investing Co. v City of New York, 39 N.Y.2d 587, appeal dismissed and cert denied 429 U.S. 990). When, however, the use is for a charitable or religious purpose, the standard is that the designation "not physically or financially prevent, or seriously interfere with the carrying out of" that purpose (Matter of Society for Ethical Culture v Spatt, 51 N.Y.2d, at p 455, supra; Lutheran Church v City of New York, 35 N.Y.2d, at p 131, supra; Matter of Trustees of Sailors' Snug Harbor v Platt, 29 A.D.2d 376, supra). This results from the "special status of religious institutions under the First Amendment" (Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, 38 N.Y.2d 283, 287, 288) "which severely curtails the permissible extent of governmental regulation in the name of the police powers" (Matter of Westchester Reform Temple v Brown, 22 N.Y.2d 488, 496, supra).
When the latter standard applies and the existing building of the religious institution is totally inadequate for its legitimate needs if it is to be able freely and economically to use its premises, landmark designation which by proscribing alteration or demolition invades the owner's right to own and manage its property is unconstitutional as applied and the municipality must, then, be prepared to "provide agreeable alternatives or condemn the premises" (Lutheran Church v City of New York, 35 N.Y.2d, at p 132, supra). Whether designation of particular buildings is sustainable turns on "whether the preservation of these buildings would seriously interfere with the use of the property, whether the buildings are capable of conversion to a useful purpose without excessive cost, or whether the cost of maintaining them without use would entail serious expenditure — all in the light of the purposes and resources of the petitioner" (Matter of Trustees of Sailors' Snug Harbor v Platt, 29 A.D.2d, at p 378, supra).
It is this standard — whether the designation physically or financially prevents, or seriously interferes with the carrying out of the church's religious and charitable purposes — that the majority holds is unripe for consideration without regard to plaintiff's status as a religious institution because of the availability of the certificate of appropriateness procedure, and that the Commission argues is unripe because of the availability of that procedure, the hardship procedure and the "judicial test." The arguments advanced simply do not withstand analysis.
B
The importance attached to the appropriateness procedure by the Commission is best evidenced by the fact that its brief devotes but one paragraph to it and concentrates most of its argument on the judicial test it claims power to apply in a section 207-8.0 hardship proceeding. The reason is not hard to find, for the Commission itself has construed the section 207-6.0 appropriateness procedure to apply only to architectural appropriateness. Notwithstanding that fact, the majority finds plaintiff's failure to apply for a certificate of appropriateness determinative of ripeness. In doing so, it ignores both the past constructions of the section by the Commission and the wording of the governing subdivision.
Subdivision (d) deals with the considerations governing an application under section 207-6.0 with respect to an exterior designation such as is here involved. It requires that the Commission "consider the effects of the proposed work upon the protection, enhancement, perpetuation and use of the exterior architectural features of such landmark which cause it to possess a special character or special historical or aesthetic interest or value." Section 207-1.0 (g) defines "exterior architectural feature" to mean "[t]he architectural style, design, general arrangement and components of all of the outer surfaces of an improvement, as distinguished from the interior surfaces enclosed by said exterior surfaces, including, but not limited to, the kind, color and texture of the building material and the type and style of all windows, doors, lights, signs and other fixtures appurtenant to such improvement."
What the provision deals with then is solely the architectural appropriateness of proposed changes, and the Commission itself has so construed it. Thus, in denying a certificate of appropriateness for a multistory office building to be constructed above Grand Central Terminal, the Commission, in reasoning applicable as well to the high-rise condominium the church proposed to erect at the rear of its plot, stated:
Quoted in Penn Cent. Transp. Co. v New York City ( 438 U.S. 104, 117-118).
"[We have] no fixed rule against making additions to designated buildings — it all depends on how they are done * * * But to balance a 55-story office tower above a flamboyant Beaux-Arts facade seems nothing more than an aesthetic joke. Quite simply, the tower would overwhelm the Terminal by its sheer mass. The 'addition' would be four times as high as the existing structure and would reduce the Landmark itself to the status of a curiosity.
"Landmarks cannot be divorced from their settings — particularly when the setting is a dramatic and integral part of the original concept. The Terminal, in its setting, is a great example of urban design. Such examples are not so plentiful in New York City that we can afford to lose any of the few we have. And we must preserve them in a meaningful way — with alterations and additions of such character, scale, materials and mass as will protect, enhance and perpetuate the original design rather than overwhelm it."
That appropriateness is limited to architectural appropriateness is borne out also by the Commission's reference, in denying an earlier proposal in the same case, to a number of instances in which it had approved additions to landmarks: "The office and reception wing added to Gracie Mansion and the school and church house added to the 12th Street side of the First Presbyterian Church are examples that harmonize in scale, material and character with the structures they adjoin. The new Watch Tower Bible and Tract Society building on Brooklyn Heights, though completely modern in idiom, respects the qualities of its surroundings and will enhance the Brooklyn Heights Historic District, as Butterfield House enhances West 12th Street, and Breuer's own Whitney Museum its Madison Avenue locale." Nor has the Commission's view changed in the intervening years, for in 1025 Fifth Ave. v Marymount School ( 123 Misc.2d 756) it denied a certificate of appropriateness to a Catholic college preparatory school which had no on-site gymnasium because the plans submitted clashed with and detracted from the facades of the school building, but then granted the college's hardship application because without the gymnasium the college buildings were inadequate for carrying out its purpose (123 Misc.2d, at pp 758-759).
Id., 438 US, at p 118, n 18.
The 1025 Fifth Ave. action was instituted by two cooperative corporations owning apartment houses adjacent to the college in an effort to overturn that grant. The determination of the Commission is set forth in full as part of the record in the present case.
The majority's insistence on the church's use of the appropriateness procedure misconceives both the factual background of the present case and the statutory framework. Thus, its statement (majority opn, at p 516) that "plaintiff does not" assert that the Landmarks Law compels it to "maintain and retain an unsuitable building which it wants to demolish" (emphasis in original) is true only in the sense that the West End Avenue and 86th Street retaining walls and the octagonal tower would be retained. Ignored are the affidavits of Chairman Gurley and Reverend George which point up the unsuitability of the enormous sanctuary and the small and misshaped rooms used only with difficulty for other church pursuits and the consequent necessity for reduction of the sanctuary and rearrangement of the first and second floors to provide usable offices, meeting rooms and Sunday school space. Ignored also is the memorandum of the Commission's executive director reporting that the church wished "to explore having a portion of the complex demolished and a new structure built which wraps up and around the main building."
With respect to the statutory framework, the majority takes the church to task for "its aversion to ceding any control of the building program to the Commission" (majority opn, at p 517). But, as the church contends, the basic issue here is which is to be preferred — religious freedom or architectural and cultural interests. The Commission has no statutory authority to deal with the hardship issue with respect to religious and charitable organizations, that issue being for the courts. To give it the leverage to deal with appropriateness as something more than architectural appropriateness, as the majority opinion does, after the designation is an accomplished fact and the religious organization incurs maintenance obligations under threat of criminal sanctions and without regard to the organization's financial situation, is in effect to permit hardship, not a function of the Commission with respect to a church, to be negotiated under the guise of appropriateness and is wholly inconsistent with the church's First Amendment rights.
C
Both the majority (n 2) and the Commission concede, as indeed they must in view of our holding in Lutheran Church v City of New York (35 N.Y.2d, at p 124, supra), that section 207-8.0, involving as it does a requirement of sale or lease by the owner of the landmarked building, is inapplicable to a religious corporation apart from the "judicial test" declared in Matter of Society for Ethical Culture v Spatt (supra); Lutheran Church v City of New York (supra); and Matter of Trustees of Sailors' Snug Harbor v Platt (supra). It is, however, a gross distortion of those cases to suggest, as does the Commission, that it, rather than the courts, is empowered to grant dispensations of the statutory requirement or to negotiate, rather than provide, "agreeable alternatives."First, the cases themselves spell out that whether the designation as applied to a tax-exempt institution is sustainable is a question for the court, not the Commission. Snug Harbor expressly so stated (29 A.D.2d, at p 378): "However, the * * * provisions in regard to property devoted to charitable uses are limited to the instance where the institution desires to alienate the property by sale or lease (§ 207-8.0, subd. a, par. [1], subpar. [b], cl. [2]). We agree with Special Term that this does not render the statute unconstitutional. It must be interpreted as giving power to the commission to provide relief in the situation covered by the statute, but not restricting the court from so doing in others." (Emphasis supplied.) Lutheran Church, which, like the present case, sought a declaration of invalidity of the landmark designation of a religious institution which had not applied for administrative relief, was decided by this court, the plaintiff's proof of economic hardship being substantially unchallenged (35 N.Y.2d, at p 128), and the Ethical Culture decision, likewise by this court, turned on our conclusion that its modification was for secular rather than religious purposes. Upon what authority, then, the Commission reads the test into the hardship provision of section 207-8.0 and thus empowers itself, rather than the courts, to grant dispensations of the statutory requirements is nowhere explained. Second, there is a clear anomaly in the Commission's refusal during the 15 months that it had the designation of plaintiff's church under review to consider the judicial test alternatives as part of the designation proceeding, as plaintiff requested, on the ground that the statute does not authorize it to do so, while at the same time insisting that alternatives must be sought as part of a hardship proceeding, despite the fact that the statute does not authorize that either. It is no answer to say that the statute must be read as though it had been amended by the Legislature (see, People v Finkelstein, 9 N.Y.2d 342, 345), for the judicial rule can as readily be read to amend the designation procedure under Administrative Code § 207-2.0 as the hardship procedure under section 207-8.0. Third, Lutheran Church ruled that "[w]here the owner can make a case for alteration or demolition the municipality would have to relinquish the designation, provide agreeable alternatives or condemn the premises" (35 N.Y.2d, at p 132, supra; emphasis supplied). Just how the municipality's power to provide alternatives agreeable to the church has been transmogrified into authorization to the Commission to approve or disapprove the church's plan, as distinct from relinquishing the designation or condemning the premises, is nowhere revealed. Finally, it is of more than minor significance that the statute has not been amended since 1977, despite our aside in the Penn Cent. case, for the failure of the Legislature to do so suggests a legislative intent that the issue remain one for the courts rather than the Commission (see, La Guardia v Cavanaugh, 53 N.Y.2d 67, 76).
Because the Commission has not sought to controvert the church's allegation that the proposed condominium is essential to its financial survival, the same conclusion cannot be reached on the present motion.
(42 N.Y.2d, at p 337): "The statute needs improvement. In some cases it protects property owners inadequately (Lutheran Church in Amer. v City of New York, 35 N.Y.2d 121 * * *)."
D
It is against that background that the ripeness of the present proceeding is to be assessed. The general rule is that a request for an injunction or a declaratory judgment is premature if the harm to the plaintiff is contingent upon events that may never occur (Matter of New York State Inspection, Sec. Law Enforcement Employees v Cuomo, 64 N.Y.2d 233, 240; New York Public Interest Research Group v Carey, 42 N.Y.2d 527, 531). But, as already noted, here, as in Lutheran Church (supra), plaintiff's proof of economic hardship is unchallenged by defendants on this motion and here, as in Lutheran Church, it was the designation, "the application of the statute to appellant's building, which enabled the appellant to relate the designation to the irreparable harm to appellant caused thereby" ( 27 A.D.2d 237, 239, on further appeal 42 A.D.2d 547, mod, over a dissent as to ripeness, to declare designation unconstitutional 35 N.Y.2d 121). The more particularly is this so in view of the Administrative Code provision making the designation effective from the date of adoption (see, n 2, supra) and of the obligation thus immediately imposed, subject to criminal prosecution for noncompliance (Administrative Code § 207-16.0 [b]), of maintaining in good repair not only the exterior of the church but also all interior portions that may tend to cause the exterior to deteriorate (Administrative Code § 207-10.0 [a]), for even though the Commission has thus far taken no steps toward prosecution, the possibility of its doing so necessarily affects the church's actions and the allocation of its meager resources (Abbott Labs. v Gardner, 387 U.S. 136, 152; Phillips Petroleum Co. v Federal Energy Admin., 435 F. Supp. 1239, affd sub nom. Standard Oil Co. v Department of Energy, 596 F.2d 1029).
The majority's insistence upon conserving judicial resources by subjecting the church's rebuilding plan to the Commission's approval under the guise of appropriateness misconstrues not only the appropriateness provisions of the Administrative Code but also decisional law and text authority as to ripeness.
First, it is suggested that a controversy is unripe if it involves the resolution of factual issues (majority opn, at p 519). But, as already noted, Special Term found that defendants had tacitly conceded that the church's claim of financial hardship appears well founded, and the Commission not having controverted the claims in that respect set forth in the church's affidavit answering the motion for summary judgment, those claims must be accepted as true. And, to paraphrase Davis (Administrative Law, vol 4 § 25.13, at 402 [2d ed]), with respect to a decision granting summary judgment "the facts [being] undisputed * * * the only question [is] one of law [and] the reason for relieving [plaintiff] from [its] dilemma [is] peculiarly strong". Thus, it simply begs the question to suggest, as does the majority (at p 522), that the constitutional question whether there is interference with plaintiff's ability to carry out it religious and charitable purposes requires "a careful examination of facts not yet developed pertaining to plaintiff's financial situation".
Nor can the church's lack of funds be separated from its religious and charitable purposes as Supreme Court suggested, the proposed partial demolition and rebuilding of the church being a use of its premises not for secular purposes but to provide the means of carrying on its religious and charitable work and a use to which it is legally entitled but for the landmark designation.
Second, that criminal sanctions have not been threatened by the Commission should not foreclose consideration now of the constitutional question presented. The Landmarks Law imposes criminal sanctions for failure to carry out the affirmative duty of maintenance and repair imposed by section 207-10.0 as well as for violation of the negative limitations imposed by section 207-4.0 against constructing any improvement on the land within the landmark site or altering any improvement constituting a part of such site. The affront to plaintiff's religious freedom is that in order to achieve the financial basis necessary for it to carry out its religious and charitable work it must submit not just to the preservation of the 86th Street and West End Avenue exterior walls that have been landmarked but also to the Commission's intermeddling in its over-all rebuilding plan or establish to the satisfaction of the Commission, in the guise of the Commission providing it with a reasonable alternative, that its financial situation is such that it should be permitted to partially demolish and rebuild the existing structure.
Judicial resources are hardly conserved by forcing the litigation of a constitutional issue out of the declaratory judgment mold and into criminal litigation, except perhaps as some, less dedicated to principle than plaintiff's governing board, may be intimidated into giving up the fight. Nor do the Supreme Court cases or the text authority on which the majority relies sustain the conception that a criminal proceeding is the only answer. Indeed, Abbott Labs. v Gardner (supra), on which the majority so heavily relies, held "sufficiently direct and immediate as to render the issue appropriate for judicial review" the impact of regulations requiring that plaintiff incur costs in relabeling where the alternative to compliance would "risk serious criminal and civil penalties" and thus "may be even more costly" (387 US, at pp 152-153), notwithstanding the Solicitor General's representation that the Government would not enforce the regulation by criminal proceedings (id., at p 154). So also in Epperson v Arkansas ( 393 U.S. 97) a teacher obligated by Arkansas statute not to teach the theory of evolution was held entitled to a declaration that the statute was in violation of the First Amendment because she faced the dilemma of teaching the statutorily condemned material or subjecting himself to dismissal and criminal prosecution. And Davis tells us that the Abbott decision established that "governmental action is ripe for challenge when it places the challenging party in a dilemma of incurring the disadvantages of complying or risking penalties for noncompliance" (op. cit. § 25.7, at 373), that "[t]he general principle of ripeness law now is that a statute, regulation or policy statement is ripe for challenge when an affected person has to choose between disadvantageous compliance and risking sanctions" (id. § 25.13, at 393) and in an italicized statement that "[t]he basic proposition [is] that administrative action which creates a dilemma for a private party who must choose between disadvantageous compliance and risking serious penalties is ripe for challenge" (id. § 25.6, at 369).
Of note in that connection is the fact, brought out in the concurring opinion of Mr. Justice Black, that though the statute was 40 years old there had "never been even a single attempt by the State to enforce it" (id., at p 109).
Third, the majority's concept of harm is also skewed. Abbott teaches that it is "the hardship to the parties" that is to be considered (387 US, at p 149). Of importance, then, is whether the loss to the public will be any greater if a preenforcement suit is allowed and, even if the public loses something by preenforcement consideration, whether that loss outweighs the private advantage of allowing such a suit (Davis, op. cit. § 25.6, at 372; see, National Automatic Laundry Cleaning Council v Shultz, 443 F.2d 689, 702 ["The ultimate question is whether the problems generated by pre-enforcement review are of such a nature that, taken together, they outweigh the hardship and interest of plaintiff's members and establish that judicial review of the interpretative ruling should be deferred"]). There is not the least suggestion in the majority opinion or in the Commission's brief that present consideration of the issue sought to be presented by plaintiff will harm the statutory program in any way, unless we count the possible invalidation of the Commission's effort to arrogate to itself the determination of constitutional issues which we have very plainly said is for the courts, not the Commission.
Though nothing will be gained by way of conservation of judicial resources (unless the church runs out of the physical or financial stamina with which to continue its fight) and no harm of which we can properly take cognizance can come to the Commission by entertainment now of the present action, there is a very real and immediate hardship to plaintiff. Already mentioned is the potential for interference with the religious and charitable functions of a special status institution such as the plaintiff church resulting from the maintenance and repair requirements, enforceable by criminal prosecution, which landmark designation imposes. When such consequences result from governmental action the right to be heard in opposition, in order to be meaningful, must ordinarily occur before the action is taken (Fuentes v Shevin, 407 U.S. 67, 80-81). There is, to be sure, an exception for summary administrative action when protection of public health or safety so requires (Hodel v Virginia Surface Min. Reclamation Assn., 452 U.S. 264, 299-300), but landmark designations involve cultural and aesthetic considerations, not health or safety. Moreover, there is nothing summary about the hardship procedure. Were the Commission's argument accepted substantial postdesignation time — well in excess of 180 days — would be consumed by the various steps required by section 207-8.0. But aside from the maintenance and repair requirements, the church faces the very real possibility that its program for obtaining the means necessary to carry on its religious and charitable work will be thwarted by its financial position and the time and effort to litigate through all the procedural steps to which the majority and the Commission would subject it. Thus will the very problem which created the need for rebuilding to preserve its religious and charitable status be subordinated to cultural and aesthetic considerations not of equal importance constitutionally.
The reference in footnote 13 of the Supreme Court's opinion in Penn Cent. Transp. Co. v New York City ( 438 U.S. 104, 113) to our Lutheran Church opinion is not to the contrary, for, as noted above in this opinion, the Lutheran Church action was addressed to the designation, which was held unconstitutional as applied.
E
There remains for consideration the majority's argument that recent Supreme Court cases support the conclusion that the present controversy is not ripe. The cases referred to (Williamson County Regional Planning Commn. v Hamilton Bank, 473 US ___, 105 S Ct 3108; and Hodel v Virginia Surface Min. Reclamation Assn., supra) involved just compensation for the taking of commercial property, not the First Amendment and due process considerations here involved. They are, in any event, distinguishable on the additional ground that each involved a land development statute of general applicability which included provision for variance of the statutory regulation, but no provision of which imposed an immediate and affirmative obligation upon the landowner similar to the civilly and criminally enforceable maintenance and repair obligations contained in the Landmarks Preservation Law.
III
Because on the record before us the landmark designation itself inflicts immediate, concrete injury upon the protected First Amendment activities of plaintiff church, I conclude that the action is not premature. The order of the Appellate Division should, therefore, be reversed, with costs, and defendant's motion for summary judgment denied.