## Facts

- Citizens Emergency Committee to Preserve Preservation (CEPP) is a citizen advocacy association of New York City residents and historic-preservation professionals focused on protecting the city’s architectural and cultural history.
- CEPP brought an Article 78 proceeding seeking mandamus (and related relief) against Robert B. Tierney, Chair of the New York City Landmarks Preservation Commission (LPC), and Kate Daly, the LPC’s Executive Director.
- CEPP challenged the LPC’s handling of “requests for evaluation” (RFEs), which ask the LPC to consider whether a property warrants designation as a landmark or inclusion in an historic district.
- The LPC’s practice relied heavily on an internal five-person RFE committee that met every two to four weeks to review RFEs and forward those that met threshold criteria to the full commission for comment.
- After commissioners submitted comments, the RFE returned to the committee chair, who decided whether to calendar the matter for a public hearing before the full commission.
- CEPP alleged that, under this approach, RFEs could remain pending for years without a public hearing or an on-the-record, public disposition.
- CEPP sought general relief requiring that each RFE reach final disposition within a reasonable time, in public, and on the record after review by the entire LPC.
- CEPP also sought specific relief as to six identified properties for which RFEs had been pending for several years.
- In opposing the petition, respondents argued that CEPP lacked standing, that landmark-designation consideration was committed to the LPC’s exclusive statutory discretion, and that the existing RFE process was fair.
- As to the six properties identified for specific relief, the LPC conceded that five were “meritorious” candidates for consideration.

## Issues

1. Whether CEPP had standing to challenge the LPC’s RFE practices and alleged failure to act on pending RFEs.
2. Whether, in an Article 78 proceeding, a court may grant mandamus-type relief where the LPC allegedly left RFEs pending for years without a public, on-the-record disposition.
3. Whether the court could direct the LPC to implement procedures to ensure RFEs reach timely, public, on-the-record dispositions after consideration by the full commission.

## Decision

- The court held that CEPP had standing to bring the Article 78 proceeding.
- The court granted the petition, finding the LPC’s prolonged inaction on the identified RFEs subject to judicial review and improper under the circumstances presented.
- The court directed the LPC to move forward and take action with respect to the six long-pending RFEs.
- The court directed the LPC to promulgate procedures to expedite RFE handling and to provide for timely, public, on-the-record final dispositions after review by the full commission.

## Legal Principles

- Article 78 review can reach unreasonable delay or a failure to act where an agency’s inaction amounts to an unlawful refusal to perform its responsibilities.
- Mandamus may compel an agency to exercise its judgment and carry out required action, even when the court may not dictate the substantive result of the agency’s discretionary decision.
- An organization may have standing where it demonstrates a sufficient stake in the challenged governmental conduct and seeks to protect interests connected to its members and mission, as recognized by the court on this record.
- Where an agency’s internal processing results in extended, indefinite pendency without a public, on-the-record disposition, a court may order the agency to adopt procedures that lead to decision and accountability, while leaving the final designation outcome to the agency.

## Conclusion

In this trial-level Article 78 decision, the court concluded that CEPP had standing to challenge the LPC’s handling of RFEs, granted mandamus-type relief based on years-long pendency without public disposition, ordered action on six identified RFEs, and directed the LPC to implement procedures aimed at ensuring timely, public, on-the-record resolutions after review by the full commission.


Citizens Emergency Committee to Preserve Preservation v. Tierney, 2008 WL 5027203 (2008)