Preview
FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM INDEX NO. 60368/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023
EXHIBIT 1
FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM INDEX NO. 60368/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023
DECISION AND OfilJER OF THE BOAR]) OF TRUSTEES .
'
IN CONNECTION WITH 53 CARMAN ROAD
DATED: June 22, 1999
Following is the decision and order of the Board of Trustees with regard to the
appeal in connection with 53 Carman Road:
Procedural Historv
On November 9, 1998, Mr. Robert Frederick, 54 Old Orchard Lane, Scarsdale, New
York, submitted a Building Department application requesting a demolition permit to
demolish a single family house at 53 Carman Road, Scarsdale, New York. Pursuant to
Section l 82-3(E)(l) of the Scarsdale Village Code, on November 10, 1998, the application
was refen-ed to the Historic Preservation Committee. By its written decision dated
December 11, 1998, the Historic Preservation Committee denied Mr. Frederick's application
for a demolition pe1mit.
On or about January 27, 1999, Mr. Frederick submitted an application to the Board of
Architectural Review ("BAR") for a Certificate of Appropriateness. On March 1, 1999, the
BAR held a public hearing on the application. On March 17, 1999, the BAR denied Mr.
Frederick's application for a demolition permit.
Pursuant to Section 182-12 and by letter dated April 14, 1999, Mr. Frederick filed a
notice of appeal before the Village Board of Trustees. On May 11, 1999, the appeal was set
for argument before the Village Board. On May 11, 1999, Mr. Frederick requested a two (2)
week adjournment. The Village Board granted the adjournment and rescheduled the hearing
of appeal for May 25, 1999.
The Village Board heard argument from both sides on May 25, 1999 and herein
renders its decision with respect to the appeal.
Standard of Review
The Village Board's central role in this appeal is similar to that of a reviewing court
in judging an administrative determination under Article 78 of the Civil Practice Law and
Rules. In order to uphold the BAR's determination, the Village Board must find that the
BAR's dete1mination was suppo1ted by substantial evidence, and was rational and in keeping
with the law.
FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM INDEX NO. 60368/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023
Substantial evidence is such relevant evidence that a reasonable person might accept
as adequate to supp011 a conclusion. Stork Restaurant v. Boland, 282 N.Y. 256, 26 N.E.2d
247 ( 1940). A more recent definition defines substantial evidence as proofwithin the whole
record "of such quality and quantity as to generate conviction in and persuade a fair and
detached fact-finder that from that proof as a premise, a conclusion or ultimate fact may be
extracted reasonably, probatively and logically." 300 Gramatan Avenue Association v. State
Division ofHuman Rights, 45 N.Y.2d 176,408 N.Y.S.2d 54 (1978).
The Law
As a reviewing body, the Village Board must apply law to the evidence using the
appropriate standard ofreview. In this instance Section 182-6 of the Scarsdale Village Code
states the following in regard to the BAR's determination under review:
The BAR, in making its determination whether or not to issue
a Ce11ificate ofAppropriateness, shall consider the following:
A) Whether the building is of such architectural or historic
interest that its removal would be detrimental to the
public's interest;
B) Whether the building is of such interest that it could be
made into a historic shrine;
C) Vihether the building is of such old and unusually
uncommon design, texture or material that it could not be
reproduced only with great difficulty;
D) Whether the building retention would promote the general
welfare by encouraging interest in American History and
architecture.
Analysis
In applying the evidence to Section l 82-6(A), the first question that
must be decided is whether there is substantial evidence in the record to
support the finding that 53 Carman Road is of architectural or historic
significance. In reviewing the entire record, the Village Board finds that
the submitted evidence does not rise to the level necessary to suppor1 such a
conclusion.
In reaching this conclusion, the Village Board considered and has
concluded that the age and architectural design of53 Carman Road and the
identity ofthe family who resided therein may be ofsome historical interest
to the Village, particularly the Arthur Manor section ofScarsdale. However,
2
FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM INDEX NO. 60368/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023
the record does not provide substantial evidence to support a positive
finding under Section 182-6(A).
No probative evidence was submitted that the cottage contains
significant architectural detail. Additionally, the assertion that the family
class"
who resided in 53 Carman Road represents the "working of Scarsdale,
does not provide the historic detail necessary to support protecting this
building under Section 182-6(A). We conclude that this assertion
individually and/or collectively is not backed by substantial evidence.
While the preservation of the Village's history is a legitimate and
laudable goal, there must be a delicate balance between individual property
rights and the stated goal. In conducting this balance, the evidence must be
substantial to outweigh individual property rights. Thus, we hold that the
record does not provide substantial evidence to find that this home is
historically or architecturally significant. Since we find that the claim that
53 Carman Road has historic or architectural significance is not supported
by substantial evidence, we do not reach the next question under Section
182-6(A), whether the removal of such property would be detrimental to the
public's interest.
The next applicable question is whether under Section 182-6(D) the
retention of the building would promote the general welfare by encouraging
interest in American History and architecture. More specifically, the
question is whether there is substantial evidence to support the finding that
the retention of 53 Carman Road would promote the general welfare by
encouraging interest in American History, local history and architecture. In
reviewing the evidence and applying the substantial evidence test, we
respond in the negative.
The evidence relied upon by the BAR does suggest that 53 Carman
Road does have some historic value to the community. This can be found in
the public comments, newspaper articles, letters and photos contained in the
record. However, the question remains whether the finding of some
historical value to the community is supported by substantial evidence. We
conclude that the proof provided to the BAR is not of such quality or
quantity as to persuade a detached fact finder that 53 Carman Road is
architecturally significant or the persons who resided therein are historically
sigmficant.
Evidence presented that supports the proposition that the site could or
would be a local tourist attraction or used for class trips as a historic or
architectural study site amounts to speculation and does not constitute
substantial evidence. Because the record does not provide substantial
evidence, we cannot find that the retention of 53 Carman Road would
3
FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM INDEX NO. 60368/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023
promote the general welfare by encouraging interest in American History
and architecture.
The BAR also considered the age of the site as a basis for
determining that the site is historically significant. We find that the age of
this site viewed alone or with other submitted evidence does not support a
finding that the site is historically or architecturally significant.
Finally, it is evident that neither side contends that 53 Carman Road
could be made into a historic shrine, or that its unique design, texture or
materials are so uncommon that it could not be reproduced without great
difficulty. Therefore, we find no basis to review the site in relation to
Section 182-6(B) & (C).
Conclusion
For all of the forgoing reasons, the Village Board finds that the
BAR's determination is not supported by substantial evidence on the record.
Accordingly, we reverse the determination of the BAR, and issue a certificate
of appropriateness. This constitutes the decision and order of the Village
Board.
4
From: Ann M. Galvani To: Al Gatta Date: 6/21/99 Time: 3:23:52 PM Page 1 of 1
INDEX NO. 60368/2023
FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023
Concurring Comments on the Appeal from Denial of Certificate of Appropriateness in connection
with 53 Carman Road
We concur in the conclusion of the Board of Trustees. Further, we agree with its
reasoning upholding the determination of the BAR that matters of local historical importance may
be legitimately within the purview of our Historic Preservation Law. However, to the extent that
this Board's reasoning might be misconstrued as a substitution of our judgment for that of the
BAR, we prefer to make the following argument in the hope that it provides some guidance for
future proceedings under this law.
We are mindful that this law deals with the deprivation of an owner's property right, a
right that is protected by the United States Constitution. Therefore, when assessing whether a
structure is entitled to protection because of its local historical importance, we believe the BAR
will have to impose an exacting standard of proof. In particular, we believe: 1) such a fmding
must rest upon more than
uncorroborated, non-expert, testimony; or episodic and 2) factual
inconsistencies must be supported by a preponderance of probative evidence. We are aware that
such a standard might be more onerous than the demonstration necessary for a property of national
significance, where for example inclusion on the National Register of Historic Places creates
prima facie evidence of historical significance, but we feel that it is appropriate for the obvious
reason that every house in Scarsdale has importance to its local neighborhood.
We further believe that less reliance must be placed on a petitioner's failure to dispute
information unless: 1) a procedure has been put in place that curtails all ex parte communications
between the BAR and persons appearing before it and 2) a schedule has been established that
affords all parties the benefit of all materials sufficiently in advance of the BAR hearing to allow
a meaningful opportunity to respond. We are not suggesting that there were any improprieties in
this proceeding. Rather, we believe the community must understand that a proceeding under this
law is serious and judicial in nature. The BAR and the Board of Trustees, when performing under
this law, are not acting in a political capacity which welcomes informal community interaction.
They are, instead, performing in a quasi-judicial capacity and must adhere to strict rules of
propriety and procedural due process.
Finally, we appreciate the fact that the resources available to the Historic Preservation
Committee and BAR or the time constraints provided in the law might not be adequate. There
may be other issues. Should body feel likewise
either in the future, we encourage them to petition
the Village Manager for the necessary resources or the Board of Trustees for appropriate revisions
to the law. We acknowledge that further refinements to the law are necessary and appropriate for
future consideration by this Board.
In conclusion, we feel that the BAR handled this case of first impression in a serious and
circumspect manner and we applaud them for their professionalism.
H m Trustee Ann M. Galvani
Trustee David Kroenlein
Trustee Tom Cusick
Trustee Dorothy Finger
Trustee Joseph A. Zock
Mayor E. Markham Bench
Preview
FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM INDEX NO. 60368/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023 EXHIBIT 1 FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM INDEX NO. 60368/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023 DECISION AND OfilJER OF THE BOAR]) OF TRUSTEES . ' IN CONNECTION WITH 53 CARMAN ROAD DATED: June 22, 1999 Following is the decision and order of the Board of Trustees with regard to the appeal in connection with 53 Carman Road: Procedural Historv On November 9, 1998, Mr. Robert Frederick, 54 Old Orchard Lane, Scarsdale, New York, submitted a Building Department application requesting a demolition permit to demolish a single family house at 53 Carman Road, Scarsdale, New York. Pursuant to Section l 82-3(E)(l) of the Scarsdale Village Code, on November 10, 1998, the application was refen-ed to the Historic Preservation Committee. By its written decision dated December 11, 1998, the Historic Preservation Committee denied Mr. Frederick's application for a demolition pe1mit. On or about January 27, 1999, Mr. Frederick submitted an application to the Board of Architectural Review ("BAR") for a Certificate of Appropriateness. On March 1, 1999, the BAR held a public hearing on the application. On March 17, 1999, the BAR denied Mr. Frederick's application for a demolition permit. Pursuant to Section 182-12 and by letter dated April 14, 1999, Mr. Frederick filed a notice of appeal before the Village Board of Trustees. On May 11, 1999, the appeal was set for argument before the Village Board. On May 11, 1999, Mr. Frederick requested a two (2) week adjournment. The Village Board granted the adjournment and rescheduled the hearing of appeal for May 25, 1999. The Village Board heard argument from both sides on May 25, 1999 and herein renders its decision with respect to the appeal. Standard of Review The Village Board's central role in this appeal is similar to that of a reviewing court in judging an administrative determination under Article 78 of the Civil Practice Law and Rules. In order to uphold the BAR's determination, the Village Board must find that the BAR's dete1mination was suppo1ted by substantial evidence, and was rational and in keeping with the law. FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM INDEX NO. 60368/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023 Substantial evidence is such relevant evidence that a reasonable person might accept as adequate to supp011 a conclusion. Stork Restaurant v. Boland, 282 N.Y. 256, 26 N.E.2d 247 ( 1940). A more recent definition defines substantial evidence as proofwithin the whole record "of such quality and quantity as to generate conviction in and persuade a fair and detached fact-finder that from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably, probatively and logically." 300 Gramatan Avenue Association v. State Division ofHuman Rights, 45 N.Y.2d 176,408 N.Y.S.2d 54 (1978). The Law As a reviewing body, the Village Board must apply law to the evidence using the appropriate standard ofreview. In this instance Section 182-6 of the Scarsdale Village Code states the following in regard to the BAR's determination under review: The BAR, in making its determination whether or not to issue a Ce11ificate ofAppropriateness, shall consider the following: A) Whether the building is of such architectural or historic interest that its removal would be detrimental to the public's interest; B) Whether the building is of such interest that it could be made into a historic shrine; C) Vihether the building is of such old and unusually uncommon design, texture or material that it could not be reproduced only with great difficulty; D) Whether the building retention would promote the general welfare by encouraging interest in American History and architecture. Analysis In applying the evidence to Section l 82-6(A), the first question that must be decided is whether there is substantial evidence in the record to support the finding that 53 Carman Road is of architectural or historic significance. In reviewing the entire record, the Village Board finds that the submitted evidence does not rise to the level necessary to suppor1 such a conclusion. In reaching this conclusion, the Village Board considered and has concluded that the age and architectural design of53 Carman Road and the identity ofthe family who resided therein may be ofsome historical interest to the Village, particularly the Arthur Manor section ofScarsdale. However, 2 FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM INDEX NO. 60368/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023 the record does not provide substantial evidence to support a positive finding under Section 182-6(A). No probative evidence was submitted that the cottage contains significant architectural detail. Additionally, the assertion that the family class" who resided in 53 Carman Road represents the "working of Scarsdale, does not provide the historic detail necessary to support protecting this building under Section 182-6(A). We conclude that this assertion individually and/or collectively is not backed by substantial evidence. While the preservation of the Village's history is a legitimate and laudable goal, there must be a delicate balance between individual property rights and the stated goal. In conducting this balance, the evidence must be substantial to outweigh individual property rights. Thus, we hold that the record does not provide substantial evidence to find that this home is historically or architecturally significant. Since we find that the claim that 53 Carman Road has historic or architectural significance is not supported by substantial evidence, we do not reach the next question under Section 182-6(A), whether the removal of such property would be detrimental to the public's interest. The next applicable question is whether under Section 182-6(D) the retention of the building would promote the general welfare by encouraging interest in American History and architecture. More specifically, the question is whether there is substantial evidence to support the finding that the retention of 53 Carman Road would promote the general welfare by encouraging interest in American History, local history and architecture. In reviewing the evidence and applying the substantial evidence test, we respond in the negative. The evidence relied upon by the BAR does suggest that 53 Carman Road does have some historic value to the community. This can be found in the public comments, newspaper articles, letters and photos contained in the record. However, the question remains whether the finding of some historical value to the community is supported by substantial evidence. We conclude that the proof provided to the BAR is not of such quality or quantity as to persuade a detached fact finder that 53 Carman Road is architecturally significant or the persons who resided therein are historically sigmficant. Evidence presented that supports the proposition that the site could or would be a local tourist attraction or used for class trips as a historic or architectural study site amounts to speculation and does not constitute substantial evidence. Because the record does not provide substantial evidence, we cannot find that the retention of 53 Carman Road would 3 FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM INDEX NO. 60368/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023 promote the general welfare by encouraging interest in American History and architecture. The BAR also considered the age of the site as a basis for determining that the site is historically significant. We find that the age of this site viewed alone or with other submitted evidence does not support a finding that the site is historically or architecturally significant. Finally, it is evident that neither side contends that 53 Carman Road could be made into a historic shrine, or that its unique design, texture or materials are so uncommon that it could not be reproduced without great difficulty. Therefore, we find no basis to review the site in relation to Section 182-6(B) & (C). Conclusion For all of the forgoing reasons, the Village Board finds that the BAR's determination is not supported by substantial evidence on the record. Accordingly, we reverse the determination of the BAR, and issue a certificate of appropriateness. This constitutes the decision and order of the Village Board. 4 From: Ann M. Galvani To: Al Gatta Date: 6/21/99 Time: 3:23:52 PM Page 1 of 1 INDEX NO. 60368/2023 FILED: WESTCHESTER COUNTY CLERK 05/24/2023 12:14 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/24/2023 Concurring Comments on the Appeal from Denial of Certificate of Appropriateness in connection with 53 Carman Road We concur in the conclusion of the Board of Trustees. Further, we agree with its reasoning upholding the determination of the BAR that matters of local historical importance may be legitimately within the purview of our Historic Preservation Law. However, to the extent that this Board's reasoning might be misconstrued as a substitution of our judgment for that of the BAR, we prefer to make the following argument in the hope that it provides some guidance for future proceedings under this law. We are mindful that this law deals with the deprivation of an owner's property right, a right that is protected by the United States Constitution. Therefore, when assessing whether a structure is entitled to protection because of its local historical importance, we believe the BAR will have to impose an exacting standard of proof. In particular, we believe: 1) such a fmding must rest upon more than uncorroborated, non-expert, testimony; or episodic and 2) factual inconsistencies must be supported by a preponderance of probative evidence. We are aware that such a standard might be more onerous than the demonstration necessary for a property of national significance, where for example inclusion on the National Register of Historic Places creates prima facie evidence of historical significance, but we feel that it is appropriate for the obvious reason that every house in Scarsdale has importance to its local neighborhood. We further believe that less reliance must be placed on a petitioner's failure to dispute information unless: 1) a procedure has been put in place that curtails all ex parte communications between the BAR and persons appearing before it and 2) a schedule has been established that affords all parties the benefit of all materials sufficiently in advance of the BAR hearing to allow a meaningful opportunity to respond. We are not suggesting that there were any improprieties in this proceeding. Rather, we believe the community must understand that a proceeding under this law is serious and judicial in nature. The BAR and the Board of Trustees, when performing under this law, are not acting in a political capacity which welcomes informal community interaction. They are, instead, performing in a quasi-judicial capacity and must adhere to strict rules of propriety and procedural due process. Finally, we appreciate the fact that the resources available to the Historic Preservation Committee and BAR or the time constraints provided in the law might not be adequate. There may be other issues. Should body feel likewise either in the future, we encourage them to petition the Village Manager for the necessary resources or the Board of Trustees for appropriate revisions to the law. We acknowledge that further refinements to the law are necessary and appropriate for future consideration by this Board. In conclusion, we feel that the BAR handled this case of first impression in a serious and circumspect manner and we applaud them for their professionalism. H m Trustee Ann M. Galvani Trustee David Kroenlein Trustee Tom Cusick Trustee Dorothy Finger Trustee Joseph A. Zock Mayor E. Markham Bench