New York City Designation Process: Closing the Loophole to Protect Potentially Eligible Buildings
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Pratt Historic Preservation Colloquium Fall 2014 // Professor Vicki Weiner New York City Designation Process: Closing the Loophole to Protect Potentially Eligible Buildings Amanda Gruen
Transcript of New York City Designation Process: Closing the Loophole to Protect Potentially Eligible Buildings
P r a t t H i s t o r i c P r e s e r v a t i o n C o l l o q u i u m F a l l 2 0 1 4 / / P r o f e s s o r V i c k i W e i n e r
New York City Designation Process: Closing the Loophole to Protect Potentially Eligible Buildings Amanda Gruen
08 Fall
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TABLE OF CONTENTS INTRODUCTION 3 PROBLEM DEFINITION 3 BRIEF BACKGROUND 4 PROBLEM STATEMENT 7 LITERATURE REVIEW 11 HISTORY AND EVOLUTION OF THE LANDMARKS LAW 12 TRANSPARENCY IN GOVERNMENT 16 PROPERTY OWNER RIGHTS AND LANDMARKS LAW CONSTITUTIONALITY 19 CASE STUDIES 26 DAKOTA STABLES 26 FRANK LLOYD WRIGHT AUTO SHOWROOM 30 ODD JOB (FORMERLY PATERSON SILKS) BUILDING 36 STAKEHOLDERS & EVALUATIVE CRITERIA 39 STAKEHOLDERS AND CORRESPONDING EVALUATIVE CRITERIA 39 FINAL EVALUATIVE CRITERIA 44 ALTERNATIVES & ANALYSIS 45 ADMINISTRATIVE CODE ACTIONS 45 NON-‐ADMINISTRATIVE CODE ACTIONS 50 NO ACTION 52 RECOMMENDED ALTERNATIVE 53 CONCLUSION 55 WORKS CITED 56
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INTRODUCTION
PROBLEM DEFINITION
The focus of this paper examines an issue facing the designation process in New
York City and more specifically how the Landmarks Preservation Commission’s
(LPC) current method of notifying property owners of its interest in potential
designation poses a challenge for the agency’s mission. The paper reviews the
existing community outreach strategy that the LPC employs in order to gain an
understanding of how the process can be improved upon in order to safeguard
potentially eligible buildings from possible alteration and demolition. For the
purpose of this paper, “potentially eligible” refers to structures that are eligible for
individual landmark designation or are within a proposed historic district, meaning
the LPC research department is surveying the site and the LPC commissioners have
yet to set forth a motion to calendar. The official timeline is detailed in the next
section of this report. The paper will propose alternatives that should be
implemented to ensure further protection for non-‐designated, potentially eligible
historic resources.
The process of developing this paper began by reading a report published in 2014
by Gregory Dietrich for the Greenwich Village Society for Historic Preservation
(GVSHP) that analyzes pre-‐designation activities during the Bloomberg
Administration (2002-‐2013). The report, Analysis of Pre-‐Designation Activities in
New York City during the Bloomberg Administration, views the pre-‐designation
activities “as a means of identifying the ‘windows’ of redevelopment opportunities
that accompany designation and the ensuing destruction these timeframes have had
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on the city’s historic resources.”1 The scope of Dietrich’s study is restricted to pre-‐
designation activities identified during the Bloomberg Administration, meaning the
study does not encompass activities that transpired during prior mayoral
administrations.
The process of developing this report continued with a literature review, which
focuses on the history of New York City’s Landmarks Law, government
transparency, and property rights. Additionally, interviews were carried out with
prominent preservation advocates, including Andrew Berman, the Executive
Director of GVSHP, and Simeon Bankoff, the Executive Director of Historic Districts
Council (HDC). An interview was also conducted with Gregory Dietrich of Gregory
Dietrich Preservation Consulting. Finally, a conversation with Michael Owen,
Community Outreach Coordinator at the LPC, was instrumental in gaining a well-‐
rounded and accurate perspective of the goings-‐on at the LPC.
BRIEF BACKGROUND
The following graphic illustrates the LPC’s current designation process and was
created for the purpose of this report.
1 Dietrich, Gregory G. “Analysis of Pre-‐Designation Activities in New York City during
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According to LPC Community Outreach Coordinator Michael Owen, current outreach
practices include an initial letter, telephone call, and e-‐mail from the LPC to property
owners of potentially eligible buildings. This initiates an ongoing conversation. At
the same time, the LPC research department conducts an in-‐depth survey to
determine if the building meets eligibility requirements. The community outreach
component of the designation timeline was introduced in the early 2000s. The
decision to include property owners throughout the process, even before their
properties are officially under consideration, has been thought by the LPC to be
good government.2 Additionally, the conversation allows the LPC to acquire
additional information that the agency’s research department otherwise misses,
such as if the owner is selling the property or other information regarding specific
architectural features of the building. The LPC’s transparent approach is
underscored by former LPC Chair Robert Tierney, who stated that “owner consent is
not required, but [the LPC tries] to obtain it whenever possible.”3 This will be
further discussed in the literature review section of this report.
The motion to calendar is an action taken by the LPC commissioners that constitutes
the first formal step in the designation process. At this time, authorized LPC staff
enter a “C” for a “Calendared” Landmark Status into the Department of Building’s
(DOB) Building Information System (BIS). The two agencies are separate, and this is
the first official communication between the LPC and DOB in the process, and it
indicates that the potentially eligible building is officially under consideration for
designation. Once the commissioners have set forth the motion to calendar,
property owners are notified via a letter officially informing them of a public
hearing, at which time the property will be heard and testimony can be read. This 2 Owen, Michael. Phone interview by author. 02 December 2014. 3 Pogrebin, Robin. “Preservationists See Bulldozers Charging Through a Loophole.” New York Times 28 Nov. 2008.
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letter is mailed at least ten days in advance of the public hearing. According to
Michael Owen, the ongoing communication with the property owner allows the
property owner to already be aware that the official notice of public hearing is en
route. Property owners receive letters every step in the process, including notice of
the commissioner vote and results.4
Following the official notification of public hearing, a potential permit review period
may follow. This constitutes a 40-‐day period that is triggered when a property
owner of a potentially eligible building seeks to obtain a DOB permit for work on the
building prior to a designation vote. When the property owner applies for the DOB
permit, the DOB notifies the LPC of the application; this is a courtesy (DOB-‐
administrative) action that allows the DOB to hold the permit for up to 40 days
while the LPC has time to review the application and to give the DOB a Notice of
Review (NOR). The LPC may approve applications without granting landmark
status to the buildings under review during this period. Described as a nuanced
“gray area,” the LPC cannot require property owners to comply with their
regulations during this phase, and the delay period is typically triggered by
applications for minor work and rarely for demolition or new building permits. In
very rare instances, if a demolition permit is filed, the LPC may decide to expedite
the designation.5 This line of communication between the DOB and the LPC is based
on the “C” entered in the DOB’s BIS system.
Regardless of whether or not the 40-‐day period is triggered by a DOB permit
application, the next step in the LPC’s designation process is a public hearing. At
this point, the public may testify regarding proposed designations. The public is
made aware of the hearings through relevant community boards and elected 4 Owen, Michael. Phone interview by author. 11 December 2014. 5 Owen, Michael. E-‐mail interview by author. 09 December 2014.
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officials; notice is sent to the community and property owners at least ten days prior
to a public hearing.
Next, the LPC votes on designation at a public meeting, where a majority vote is
required to approve or reject a proposal for designation. According to a description
on the LPC’s website that outlines how the designation process works, designation
is effective upon this vote; it is at this time that the Landmarks Law and its rules and
regulations are applicable and may be enforced.6 At this point, an “L” for
“Landmark” is entered into the BIS system.
The last phases of the designation process include City Planning and City Council
reviews. At this point, City Planning may submit a zoning impact report within 60
days of the designation vote and City Council may affirm, modify, or deny the
designation within 120 days of the designation vote.
PROBLEM STATEMENT
According to its website, the LPC is “responsible for safeguarding the architectural,
historical and cultural heritage of New York City.” The agency lists several steps in
the process to carry out its mission and specifies that the “Calendaring” step is “the
first formal, legally mandated step in the designation process. The full Commission
votes at a public meeting whether to schedule a public hearing on the designation
proposals.” The issue is that during the initial step of non-‐mandated community
outreach between the LPC and property owners of potentially eligible buildings, the
owners are given an open window to secure alteration or demolition permits from
the New York City Department of Buildings (DOB). The New York Administrative
6 “How the Designation Process Works.” NYC Landmarks Preservation Commission.
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Code’s Landmarks Law does not mandate this initial community outreach, which
consists of property owner contact prior to a public hearing notice.
This timeframe opens a “loophole” in which property owners can subvert the
designation process with the goal of avoiding landmarking, whether by attempting
to alter a building to the point where no architectural significance remains, or by
demolishing the building altogether. Due to fear of or objection to regulation and
bureaucracy, in addition to potentially missed economic opportunities, a “small but
significant minority of developers and owners [use the loophole] to secure
demolition or alteration permits for their properties, making them ineligible for
landmark status, or destroying some of the very characteristics landmark
designation was intended to preserve.”7 There is sufficient evidence that the
problem is harmful and pervasive. While several problems do exist regarding the
timeframe, as illustrated in the above-‐mentioned GVSHP study, this paper will focus
on current community outreach practice involving pre-‐official public hearing
notification as the issue, despite there being subsequent loopholes in the LPC
designation process. While GVSHP’s report focuses exclusively on such occurrences
identified during the Bloomberg Administration (2002-‐2013), there are several
other comparable cases in New York City’s preservation history that may have
transpired before or during this period. The study identifies three timeframes in
which such pre-‐designation activities have occurred, including:
1. Before property owner notification
2. Between property owner notification and calendaring
3. Between calendaring and designation
7 Andrew, Berman. “Protecting Landmarks and the Landmarking Process.” CityLand Protecting Landmarks and the Landmarking Process Comments. 24 July 2014.
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The study indicates:
“[Seven] individual properties proposed for landmark or interior landmark
designation have been subject to pre-‐designation activities that have either
resulted in their defacement or demolition. This study also found that in 8 of
the 43 districts that were designated between 2002 and 2013, there were
examples of 19 buildings that were subject to pre-‐designation activities that
either resulted in their substantial...”8
New York City consists of approximately 31,000 locally designated landmark
properties throughout its five boroughs, 117 of which are interior landmarks and 10
are scenic; there are also 111 historic districts and 20 historic district extensions.9
Considering the fact that there are nearly 975,000 buildings and properties in the
entire city, designated structures do not occupy a large percentage of structures.10
In fact, this means that only 3.18% of the city is landmarked (see chart below).
8 Dietrich, Gregory G. “Analysis of Pre-‐Designation Activities”, 2014. 9 “About the Landmarks Preservation Commission.” NYC Landmarks Preservation Commission.
10 “2012 Annual Report.” NYC Department of Buildings.
Total Buildings in New York City
31,000 Landmarked
944,000 Non-‐Landmarked
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According to the most recently available data through the Council of the City of New
York’s budget hearings, there were 116 Requests for Evaluation (RFEs) submitted in
fiscal year 2012; of those, 36 individual landmarks and historic districts were
ultimately designated through the LPC’s designation process. It is important to note
that while the number of designations may seem small, the actual total includes
1,040 buildings when factoring in buildings within historic districts. The graph
below reveals data from fiscal years 2010 through 2012 and indicates that the
number of RFEs has declined, while the number of designated individual landmarks
and historic districts has remained consistent.
While it is not evident how many of the structures are not designated due to pre-‐
designation activities or due other reasons, such as remaining on the LPC calendar
or lacking sufficient architectural, historical, or cultural value, there is evidence of a
small but significant number of buildings that fall through the pre-‐calendar
loophole. This paper will provide a few examples of how the loophole results in a
loss of significant historic fabric. Though the merits of saving any particular
structure may be questioned, it is unfortunate that sometimes the LPC’s
conversation that would examine the building’s significance cannot even take place
due to potentially eligible buildings being deliberately compromised.
0
50
100
150
200
250
300
FY 10 FY 11 FY 12
Individual Landmarks & Historic Districts Designated
Requests for Evaluation (RFE) Received & Acknowledged
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LITERATURE REVIEW
The New York City Landmarks Law requires that the City’s Landmarks Preservation
Commission (LPC) notify property owners of its intent to calendar or consider a
particular property for potential landmark designation 10 days prior to holding a
public vote to calendar the property. Recently, the Commission has extended its
legal notification process; in addition to notifying property owners of its intent to
calendar a property at least 10 days prior to public hearing, the LPC communicates
with property owners in advance of the legally required notice of public hearing. An
inadvertent outcome of this multiple notification period is a substantial lead-‐time
for property owners to attain alteration, construction, and/or demolition permits
prior to the agency taking any calendaring action.11 The Commission’s call for a
transparent approach when communicating with property owners is welcomed, and
the premise that “owner consent is not required, but [the LPC tries] to obtain it
whenever possible… it helps the process going forward,” as elucidated by former
LPC Chair Robert Tierney to New York Times journalist Robin Pogrebin, illustrates
that the government agency is looking to uphold legal transparency principles in
order to move the process along through a more effective, amenable system.12
The purpose of this literature review is to establish context for the issue of the
Landmarks Law loophole in New York City, which allows for a window of pre-‐
designation activity that falls between the extra-‐legal property owner notification
and the official property owner notification to calendar a property. The review is
intended to offer a framework for the often-‐conflicting views on the preservation of
11 Dietrich, Gregory G. “Analysis of Pre-‐Designation Activities”, 2014. 12 Pogrebin, Robin. “Preservationists See Bulldozers Charging Through a Loophole.”
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historic resources and its relationship to the evolution of the Landmarks Law,
transparency of governmental processes, and property owner rights.
HISTORY AND EVOLUTION OF THE NEW YORK CITY LANDMARKS LAW
Since the National Historic Preservation Act (NHPA) in 1966, preservation as a
movement has experienced many transformations, specifically regarding the way it
is understood and who is involved in its processes.13 The NHPA empowers local
governments to create review boards – preservation commissions comprising
appointed or elected local residents – that administer local ordinances. The
protective power is found at the local level and is dealt to local authorities due to the
fundamental viewpoint that communities should establish historical significance,
value, and particular protections for their individual neighborhoods. In Historic
Preservation: An Introduction to Its History, Principles, and Practice, author Norman
Tyler references a quote by historian Antoinette Lee: “Architectural historians give
you information; the neighborhoods give you passion.”14 This concept is one that
has proven successful for preservation efforts across the country.
Laws defending neighborhood value in the form of preservation are somewhat new,
as Paul Spencer Byard explains in The Architecture of Additions: Design and
Regulations. The first notable implementations of public power for preservation in
the United States arrived in the 1930s; the New York City Landmarks Preservation
Law was only enacted in the 1960s with the creation of the Landmarks Preservation
Commission (LPC), the agency charged with administering the Landmarks Law. The
13 Tyler, Norman, Ted J. Ligibel, and Ilene R. Tyler. Historic Preservation: An Introduction to Its History, Principles, and Practice. 2nd Ed. New York and London: W. W. Norton, 2009. 53.
14 Ibid, 59.
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law expressed public benefits and sought to preserve old buildings and other
artifacts deemed historic. In order to protect publicly valued experiences,
architecture would need to be protected so that the public could walk around and
experience it.15
Thus, the New York City Landmarks Law intends to safeguard access to “noble
accomplishments of the past.” When Mayor Wagner signed New York City’s
Landmark Preservation Ordinance in 1965, the City could finally protect its
landmarks through legal means. The LPC had, prior to 1965, been a mayoral body
that lacked the strength of law.16 The national preservation laws legislated in the
1960s and 1970s were an important component of a longstanding shift in the
mindset across the United States; the embracing of urban renewal projects became
vivid and slum clearance would involve the demolition of “sub-‐standard” old
buildings so vacant lots could be sold for new structures better adapted to new uses.
The policy was unsuccessful (land was cleared but structures were not rebuilt) and
many city centers became wastelands. Urban renewal failed by turning
metropolises into distressing downtowns of anonymous office space, highways, and
parking. Renewal came to be seen as a policy that was obliterating diverse
communities by adding unremarkable towers and plazas and weakening distinctive
places recognized by their old architecture.17 Laws defending such places wanted
not to counteract change, but to regulate it. The laws did not attempt to freeze
everything in time nor simply try to avert demolition. The laws each attempted to
define and protect a range of permitted alterations in an effort to preserve valued
architecture and public experiences. In its relation to the city’s Planning 15 Byard, Paul Spencer. The Architecture of Additions: Design and Regulation. New York: W.W. Norton, 1998. 77.
16 Wood, Anthony C. Preserving New York. New York & London: Routledge, 2008. 4. 17 Byard, Paul Spencer. 77-‐78.
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Commission, New York City’s new Landmarks Law could not regulate use, bulk, and
height.18 Generally, landmarks regulations are lawful under the Police Power
afforded to local governments by the United States constitution, and New York City’s
Landmarks Law would protect architectural expression by employing the public’s
police power. To do so, the law needed to indicate that the public was entitled to
prevent harms upon historic resources; the law aimed to impose control through
regulations.19 The law established that regulating those harms would secure the
public good and rather than focusing on individuals, the law attempts to protect the
entire public. This idea is further discussed in the property rights section of this
literature review.
Just a few decades following the passage of New York City’s Landmarks Law, the real
estate boom of the 1990s transformed whole neighborhoods in New York City,
including many historic working-‐class and industrial areas; it did not just threaten a
few historic sites, as it had previously. According to Ned Kaufman in Place, Race, and
Story: Essays on the Past and Future of Historic Preservation, New York City’s
preservation organizations did not quickly grasp the threat upon its heritage.
Kaufman asserts that there were “no better policy tools to combat [the real estate
boom] in 2004 than… in 1994” and large areas of the city were reshaped with little
respect for preservation – much of New York City’s working-‐class and immigrant
history was subsequently destroyed.20 Disapproval of the Landmarks Law and a
lack of respect for historic resources ultimately led to this sort of destruction.
The history of preservation laws across the country, and particularly of the
Landmarks Law in New York City, reveals that it has taken substantial effort to 18 Ibid, 79. 19 Ibid, 81. 20 Kaufman, Ned. Place, Race, and Story: Essays on the Past and Future of Historic Preservation. New York: Routledge, 2009. 229.
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convey the significance that historic places have for the public. In shifting the
argument from an aesthetic one to an argument that considers more significantly
the “greater good”, preservationists have secured a path for preservation laws
across the country, even in the midst of criticism from the public and, more
frequently, real estate developers claiming that preservation stifles development of
new buildings that could potentially add architectural value and housing stock.
Harvard economics professor Edward L. Glaeser argues that preservation laws,
specifically those permitting historic districts, freeze cities. Glaeser contends that
less new housing has been built in historic districts, despite them being some of the
most attractive areas in the city. Municipal Art Society (MAS) president Vin Cipolla
states otherwise – in an article Preserving Historic Preservation in New York City,
Cipolla argues that development can and does occur in historic districts. He
mentions recently approved residential buildings such as an 11-‐story structure in
the Greenwhich Village Historic District, a 23-‐story and a 17-‐story building both in
the Ladies’ Mile Historic District. He turns the table and instead points the finger at
zoning, not landmarking, for having control over development. One way that New
York City’s Landmarks Law has been successful, according to Kaufman, is in part
due its responsiveness to changing views and changing needs.21 Cipolla
underscores this notion by mentioning that New York City has continued to grow
while the Landmarks Preservation Commission has designated individual buildings
and historic districts. He offers data from MAS indicating an increase by 300 million
square feet of gross square footage of the city’s building stock just between 2003
and 2008.
21 Ibid, 55.
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The evolution of New York City’s Landmarks Law indicates that despite much
opposition to regulate historic resources out of fear of progress, preservation laws
promote a type of growth that takes architectural value into consideration in the
framework of protecting public experiences. There is an abundance of literature on
the public debate over where preservation and landmarking take this goal too far
through too much regulation and a lack of transparency, and both topics are further
discussed in this literature review.
TRANSPARENCY IN GOVERNMENT
New York’s Open Meetings Law is a legislative declaration that states the
significance of performing public business in “an open and public manner and that
the citizens of this state be fully aware of and able to observe the performance of
public officials and attend and listen to the deliberations that go into the making of
public policy”.22 The significance is that the public must be made aware of
governmental actions throughout the decision-‐making process. The law specifies
that every public meeting shall be open to the general public, and notice of time and
location of the meetings shall be given at a reasonable time prior to the meeting.
The Open Meetings Law applies to preservation commissions and relates to the
requirements of procedural due process, a topic discussed in the next section of this
literature review. Adequate and timely notice of hearings must be given to the
public, and the implementation of this law underscores the attempted transparency
in the preservation realm.
22 Public Officers Law, Article 7, §100.
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An article titled Historic Preservation Law Concerning Private Property, by
Christopher D. Bowers, elaborates on transparency in government as it relates to
landmarks laws. Specifically, Bowers states, “in most states, sending notice in a
timely manner to the applicant… and posting the agenda in accordance with the
state’s open meetings act, if any, is sufficient”.23 At the hearing, the commission
should allow the public to present relevant evidence, though it can impose
reasonable restrictions such as time limits. Additionally, the commission can
require testimony to be submitted in writing. Commissions not only meet due
process requirements by notices and hearings, but also by being fair and impartial
decision makers. Neutrality is key, however the public and property owners often
perceive preservation commissions as not being clear and unbiased. According to
Thompson Mayes in A Richer Heritage, preservation commissions are seen as “taste
police,” conducting rulings that seem subjective.24 A commission’s job is to employ
precise criteria when evaluating various applications. This sort of transparency is
an act of good public policy, which only enforces support by the general public. The
problem of misperception can be dealt with by carefully defining criteria that has
been stated in preservation ordinances. Additionally, the public hearings can be
utilized to address concerns and help answer questions to better educate property
owners. As part of a context for legal decision-‐making, there is a need to approach
the subject matter objectively.
In Historic Preservation Law Concerning Private Property, Bowers also mentions
another requirement of due process: statement of reasons and evidence. By publicly
23 Bowers, Christopher D. “Historic Preservation Law Concerning Private Property.” JSTOR. The Urban Lawyer 30.2: 432.
24 Mayes, Thompson. “Preservation Law and Public Policy: Balancing Priorities and Building an Ethic.” A Richer Heritage: Historic Preservation in the Twenty-‐First Century. Ed. Robert E. Stipe. Chapel Hill: U of North Carolina, 2003. 174.
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stating reasons for decisions concerning approved and rejected permits, the
commission upholds the idea of a transparent and open process through providing
concrete, clear evidence.25 In an article titled Reform the Landmarks Preservation
Commission, Steven Spinola of the Real Estate Board of New York claims that New
York City’s preservation commission suffers from a lack of transparency and is not
required to justify its decisions.
Bowers points to some legislature that suggests otherwise. He writes about Open
Meetings Acts, a law mentioned at the beginning of this section of the literature
review. Most states require commissions and other governmental agencies to allow
the public to attend meetings; preservation commissions are subject to this since
they have quasi-‐judicial power and possess more than advisory duties and
functions.26 The law defines a meeting as a “deliberation between a quorum of
commission members concerning public business or public policy over which the
commission has supervision or control” and a deliberation is a “verbal exchange
between a quorum of the commission members.” The commission can, however,
close a meeting to the public for various reasons, including discussing legal matters,
discussing the purchase, exchange, lease, or value of property, or discussing with an
attorney negotiated contracts or personnel matters. This type of arrangement is
important not only for the practice of good government, but for growing support in
the preservation realm. When property owners and advocates know the reasoning
for decision-‐making, they are more likely to develop a sense of understanding and
support. Maintaining this transparency is vital to the continued success of
preservation laws, as property owners that know exactly what actions are
25 Bowers, Christopher D. 433. 26 Ibid, 439.
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transpiring in regards to their properties and why are more likely to be assets to the
process.
Other laws that underscore open and transparent government practices include the
Public Information Acts, which Bowers explains are required by most states. The
laws are called “Open Records Acts,” and they are in place so that the public has
access to all public information.27 In regards to preservation commissions, these
types of acts are vital to ensuring a smooth process and guaranteeing good public
policy. By being transparent, property owners are aware of their rights and how
they are being considered in the scope of preserving historic resources.
PROPERTY OWNER RIGHTS AND LANDMARKS LAW CONSTITUTIONALITY
The New York City Landmarks Law and nationwide preservation laws and
ordinances have stirred controversy among some property owners, who strongly
believe that their Fifth Amendment rights are violated when their properties face
preservation regulations. The basis of the property rights argument is found within
the Fifth Amendment of the Constitution, and analysis of the phrase “nor shall
private property be taken for public use without just compensation” has been
extensively deliberated in the Courts, state legislatures, and Congress, among
various other outlets.28
In A Richer Heritage, author Thompson Mayes notes that the debate is about
supporting a balance between the rights of the public and the rights of property
owners, and about shifting notions of the nature of “property.” He makes the point
that society accepts the “right to clean air and clean water, and that any individual 27 Ibid, 440. 28 Mayes, Thompson. 171.
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property owner’s right to pollute must be subordinate to the greater right of society
to preserve the environment.”29 Essentially, we accept regulations based on the
premise that they will contribute to the greater good. While most private property
owners maintain this mindset of the “greater good,” they do not necessarily view the
preservation of architectural, historic and cultural resources as part of this
framework.
Mayes defines the property rights battle as taking place in two main arenas: the
courts and the legislature. He offers a reminder that in the case of Penn Central
Transportation Co. et al v. New York City Co. et al, the Court upheld the New York City
Landmarks Preservation Commission’s decision to forbid the owner of Grand
Central Station from building a fifty-‐five-‐story office tower on top of the original
station built in 1903; the verdict held that whether a taking had occurred must be
made on a case-‐by-‐case basis. The Court considered many factors, including
economic impact on the property owner, the owner’s “investment-‐backed
expectation,” the character of the government’s actions, and whether the action
allowed a physical invasion by the government. The Court also recognized that it
must examine the economic value of the land in its entirety, not just a particular
aspect (such as air rights) that might be weakened by the regulation. In Penn
Central, the property value was not lessened to where the owners could not
continue to operate and they were left with reasonable use. According to the Court,
the denial of a permit to build the tower did not result in a taking. This case clarifies
that a governmental regulation of a parcel of property, without a physical invasion,
does not constitute a taking if an economically viable use of the property remains.
In finding the constitutionality of each case, the Court set the standard that, under
29 Ibid.
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the current constitutional scheme, it is likely to uphold preservation regulations
against takings challenges.
Courts are only part of the property owner rights debate. Property rights advocates,
frustrated with the Courts’ verdicts, have taken their arguments to the legislature.
These advocates believe property to be a crucial element of American society – not
contrary to the beliefs of preservationists – and rights to the free use of private
property have always been balanced by societal obligations. Throughout more
recent history, through zoning and land use regulations (which came about in the
late 19th and early 20th centuries to protect property owner interests),30 property
owners have had duties, such as protecting water and preventing nuisances that
adversely impact neighbors. Many believe that aesthetic value and preservation are
in the realm of those responsibilities, and the U.S. Supreme Court has proven this
stance such as in the landmark case of Berman v. Parker (1954). These cases show
that the proper balance between public and private interests has yet to be
discovered, and it is difficult to draw the line where private property owners must
surrender control of any specific aspect of their property.31
In balancing individual owner rights and those of greater society, one of the main
protections for the individual is due process, which originates in the Fifth and
Fourteenth Amendments. The Fifth Amendment stipulates that a person “shall not
be deprived of life, liberty, or property, without due process of law.” Due process
protections require public notice, an opportunity for those affected to be heard, and
the adjudication of rights by just and impartial decision makers, according to
30 Derr, Donn A. and Leslie E. Small. Property Rights in Transition. New York: Ardent Media, 1977.
31 Mayes, Thompson. 174.
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Mayes.32 As local government representatives, preservation commissions are
obliged to fulfill the minimum due process requirements established under the U.S.
and state constitutions. They must also observe requirements of state law, local
ordinances, and their own regulations.
Mayes discusses “owner consent” and “owner objection” provisions that have
recently supplemented local historic preservation ordinances. Such provisions
necessitate that a property owner consents to designation before the property can
be designated or listed. The provisions allow the property owner to refuse
designation. Ultimately, permitting property owners to decline designation
undercuts the effectiveness of the ordinance, which is constructed upon the basic
concept of the property’s importance to society, rather than the partialities of the
owner. Realistically, property owners who are most likely to demolish or alter
historic buildings are handed the opportunity to avoid regulation.33 While the
ordinances serve to protect the rights of individual property owners, they fail the
political system. It is important to note there is no such provision in the New York
City Landmarks Law that allows property owners to refuse designation by the LPC.
The point of the literature found in chapter five of A Richer Heritage is to promote a
balance of regulation that considers property owner rights and the rights of larger
society. The goal of preserving historic environments is often viewed as one that
compromises property owner rights, though when considered through a broader
lens the ultimate goal is to ensure the “greater good” and to promote this within the
restraints of what a specified community will accept. When the debate over
property owner rights is analyzed, the argument centers on the quality of life, which
32 Ibid. 33 Mayes, Thompson. 179.
23
the government does in fact regulate to a degree. The point to which this regulation
is constitutional has been greatly debated in the Courts.
The previously mentioned article Historic Preservation Law Concerning Private
Property by Christopher D. Bowers provides an overview of preservation law as it
affects private property. By reviewing tools utilized by local, state, and the federal
governments, Bowers examines constitutional issues that affect the field. Local
tools include, but are not limited to, eminent domain, architectural controls
(including the establishment of historic districts), property tax exemptions, transfer
of development rights (TDRs), and conservation easements. State tools include
landmark designations, Section 106 requirements, notice requirements for projects
built on public land, and property tax exemption. Federal tools include Section 106
of the National Historic Preservation Act (NHPA), Section 4(f) requirements, and the
National Environmental Policy Act (NEPA). According to the article, as an exercise
of police power, land-‐use ordinances – including those that support historic
preservation – are presumed to be constitutional. Bowers provides the example of
Pennsylvania Coal Co. v Mahon (1922); in this case, it was found that as a general
rule, a property may be regulated to the extent to which is not considered a taking.
As in Penn Central, the Court examined the economic effect of regulation on the
property owner, the public purpose supported by the regulation, and the character
of the government action. The Courts continually hold that landmark designation is
not a taking under the Constitution. Additionally, prevention of demolition of a
structure within a historic district is not a taking as long as the action does not
prevent the owner from maintaining economically viable use of his or her
property.34
34 Bowers, Christopher D. 425.
24
State constitutions may provide property owners with more protection from takings
than the federal constitution. Bowers offers City of Austin v. Teague (1978) as an
example, maintaining that the state constitution in Texas requires the government
to pay “adequate compensation” if it takes, damages, or destroys private property.
The article continues to clarify state property rights statutes, and that “many states
[have] passed laws providing additional protection to property rights.” A 1995 law
passed by the Texas legislature prohibits governmental actions that reduce a
property’s value by 25 percent or more, and the same law requires a “takings impact
assessment” before enacting laws that reduce property values.35
The author’s claim that, in most states, courts consider preservation commissions to
act in “quasi-‐judicial capacity when considering a request to alter a historic
property” supports the notion that commissions abide by lawful standards to assess
reasoning behind various requests and before approving Certificate of
Appropriateness (COA) applications.36 In New York City, property owners typically
apply for a COA when the LPC’s rules are not clearly being followed. This
necessitates that the Commission review and decide on the appropriateness of a
proposal. The proposals are not pre-‐judged to be inappropriate – the complication
is that it is not obvious to the LPC that the proposal is appropriate; property owners
work with LPC staff and then present to the Commission at a hearing, at which time
the Commission either grants a COA, denies a COA, or recommends modifications to
the proposal. As national preservation commissions operate as “quasi-‐judicial”
organizations, they must guarantee that their practices provide due process to
applicants so that property owners’ rights are upheld.
35 Ibid, 426. 36 Ibid, 431.
25
The constitutionality of national preservation laws has been questioned continually
since their creation. While many property owners take issue with designating their
properties as landmarks or in historic districts, governmental agencies such as
preservation commissions were established to ensure the greater good. While
property owners certainly have the right to control their private properties, Courts
have justified regulation time and time again when it comes to aesthetic impact and
the preservation of historic resources (Tyler, 122). Many property owners claim
that such regulations are unconstitutional, however their rights are not overlooked
– they are just considered in a greater scheme. The Courts have determined that it
is within the scope of government authority to decide what can happen to a
property, even a religious one such as in the case of St. Bartholomew’s v. New York
City Landmarks Preservation Commission (1990).
26
CASE STUDIES
The following case studies demonstrate the loophole in New York City’s designation
process and its impacts upon potentially eligible historic structures.
DAKOTA STABLES, UPPER WEST SIDE.
Nearly a decade ago, passerby would have noticed a distinct 1894 Romanesque-‐
revival style stable building on the corner of Amsterdam Avenue and 77th Street.
The Dakota Stables (pictured above),37 once located at 342 Amsterdam Avenue, was
one of the city’s largest livery stables when constructed in 1894 by architect
Bradford Gilbert. The structure was most recently utilized as a parking garage.
Today, the site is home to a sixteen-‐story luxury condo development designed by
Robert A.M. Stern. The case study is an example of a developer, in this instance
Sylgar Properties, hurriedly applying for and receiving a permit from the DOB to
37 Dakota Stables Pre-‐Destruction. Digital image. CityLand. Image Courtesy of LPC, 15 Dec. 2006. Web.
27
make “fairly significant façade alterations” upon receiving information from the LPC
that the building is under consideration, and before the LPC calendars the property.
This situation involves the removal of enough significant architectural ornament,
including the cornice and parapet, to obliterate the building’s architectural value.
The DOB permit was granted before the LPC ruled on potential designation; even
after calendaring, the developers used a valid DOB permit obtained before the
building was calendared in order to deface the building’s façade. In fact, demolition
crews were on site – using a previously obtain DOB permit – destroying the brick
cornices just four days before the scheduled LPC hearing that would determine the
stable’s landmarking fate, and its resultant destiny in New York City’s built fabric.38
The timeline is as follows:
1. LPC community outreach in June 2006.
2. DOB permit application dates August 21, 2006.
3. LPC decides on September 19, 2006 to calendar building.39
4. Developers use DOB permit to deface the building’s façade.
5. Public hearing on November 14, 2006; building not designated.40
38 Tartar, Andre. “One Step Behind the Bulldozers.” New York Magazine. 26 Mar. 2013.
39 Dietrich, Gregory G. 10. 40 Faherty, Christopher. “Bid To Landmark Dakota Stables Is Derailed.” The New York Sun. 15 Nov. 2006. Web. 17 Oct. 2014.
28
The above graphic indicates when in the current designation timeline the
developers were able to take advantage of the loophole in order to obtain a DOB
permit to later damage the building. The destruction was ultimately carried out
after the LPC set forth a motion to calendar, a day that landed just one day following
the agency’s announcement of its intent to hold a public hearing.41 At the time, LPC
then-‐Chair Robert Tierney indicated that the Commission knew of the permit’s
issuance when the vote was held to consider designation, and according to Historic
District Council’s Executive Director Simeon Bankoff, the meeting still took place as
planned, “but it was pointless” since the distinctive features making it eligible for
designation had been removed.
Representative Jeff Blau of Related Properties, the project’s developer, testified that
prior to the public hearing, $36.7 million had already been spent on converting the
Dakota Stables and an adjoining structure into the large apartment complex. To
what exactly this substantial sum was put towards is unknown. Blau rationalized
that the project was as-‐of-‐right and included off-‐site affordable housing
construction. He also mentioned that the building could be “next century’s
landmark” and project architect Robert A.M. Stern swore his commitment to
preservation by alleging that they “would not have undertaken the project had they
thought it merited landmarking;” he stressed the fact that Dakota Stables had been
excluded from the Upper West Side/Central Park West Historic District.42
The “11th-‐hour defacing to prevent the building’s day in court,” according to New
York Landmarks Conservancy’s Roger Lang, was especially unfortunate given that
Upper West Side advocacy organization Landmark West! had the stables on its
41 Lockhart. “Dakota Stable Rains Down on Upper West Side.” Curbed NY. 21 Sept. 2006.
42 “Former Stables Trigger West Side Landmarking Debate.” CityLand. 16 Nov. 2006.
29
designation “wish list” since 1986. Additionally, many elected officials such as then-‐
State Assembly Member Linda Rosenthal, then-‐Manhattan Borough President Scott
Stringer, and then-‐City Council Members Tony Avella and Gail Brewer testified in
support of designating the Dakota Stables.
On the other hand, Carol von Guilder of the Real Estate Board of New York (REBNY)
challenged the potential designation, stating the fact that the building was proposed
for designation only after the project’s developer invested substantial time and
money in the project was “disturbing.” The above image shows the development
under construction that replaced the Dakota Stables.43
Ultimately, the building’s owner initiated pre-‐designation activities and sought a
DOB permit during the community outreach phase of the designation process
(before calendaring) in order to evade individual landmark designation. The owner
43 Conrad, Fred R. New Development. Digital image. New York Times, 28 Nov. 2008.
30
effectively destroyed a historic resource and sidestepped the designation process.
For many years, local preservation advocacy organizations advocated for the
designation of the stables and others like it, such as the Odd Job (formerly Paterson
Silks) Building (See case Study 3), prior to the LPC calendaring of the buildings. This
indicates that advocacy on its own is not enough to save a building as long as the
LPC does not take action to secure the loophole, especially as a building faces
imminent destruction, such as in the case of Dakota Stables. The agency’s honorable
objective of transparency and openness has the capacity to undermine the very
intentions of the Commission.
FRANK LLOYD WRIGHT AUTO SHOWROOM, MIDTOWN EAST.
In 2013, a small architectural and automotive landmark in Manhattan was very
discreetly destroyed as a result of the designation timeline loophole. For than half a
century between the years of 1957 and 2012, the Frank Lloyd Wright Auto
Showroom at 430 Park Avenue exhibited various European brands. The renowned
architect designed the space for auto importer Max Hoffman and the showroom
featured a spiral ramp and turntable interior. To the exasperation of
preservationists, the owners of the building, Midwood Investment & Management
and Oestreicher, applied for a DOB demolition permit only six days after the
Commission called during community outreach to inform the property owners of
the agency’s intent to designate, the first section in the timeline that falls before the
Commission’s decision to calendar.44
44 Patton, Phil. “Wright’s New York Showroom, Now Just a Memory.” The New York Times. 21 June 2013.
31
The timeline is as follows:
1. LPC community outreach (phone call, unanswered) on March 22, 2013.
2. LPC community outreach (letter, unanswered) on March 25, 2013.
3. DOB permit application dates March 28, 2013.
4. The next week, developers use DOB permit to demolish building interior.
The Commission “was unaware that the space had been demolished until [it] had an
eyewitness report that the space had been gutted,” according to Janet Halstead,
executive director of the Frank Lloyd Wright Building Conservancy, a group based in
Chicago that is committed to preserving Wright’s work across the country. Larry
Woodin, the Conservancy’s president, stated, “it is very disappointing that the City of
New York was not able to move quickly enough to prevent the demolition of this
Wright space.”45 The Frank Lloyd Wright Building Conservancy had submitted a
RFE in August 2012 – several months prior to the LPC initiated community outreach
– and only once the LPC engaged in an unofficial conversation with the property
owner was the potentially eligible landmark destroyed. As evident in this case, the
loophole prohibits the LPC from prioritizing potentially eligible structures and
ultimately results in a loss of historic fabric. In the case of the Frank Lloyd Wright
Auto Showroom, sometimes the property owner acquires a DOB permit so quickly
that the LPC does not have time to calendar.
45 Ibid.
32
The showroom (pictured above),46 one of just a handful of Wright designs in the
New York area, was purchased from Hoffman by Mercedez-‐Benz in 1958. The
company remained in the space, even through two renovations, until its move to a
larger showroom in 2012. The spiral showroom was Wright’s first built structure in
New York City, and some architectural historians attribute it to serving as
inspiration for the Guggenheim Museum.47 The building was doomed as a result of
disconnect between the LPC and the DOB in addition to a consequential loophole in
the designation process; this suggests that a change in policy could save historic
structures that face demolition or significant alteration in the future. Additionally,
had the LPC not reached out to the property owners prior to deciding whether or
not to proceed with calendaring the property, the Wright-‐designed showroom may
exist today as New York City’s 115th individual landmark.
It is important to note that after receiving the RFE from The Frank Lloyd Wright
Building Conservancy in 2012, the Commission decided to wait for Mercedes-‐Benz
to vacate the showroom space to proceed with the designation process. According
46 Patton, Phil. In the Round. Digital image. New York Times, 21 June 2013. 47 Tartar, Andre. “One Step Behind the Bulldozers.”
33
to Crain’s New York reporter Matt Chaban, “part of the reason was that an interior
landmark designation can be granted only to a public space, and there had been a
long-‐running debate in the preservation community about whether the showroom
was actually anything but private property.”48 Additionally, the Commission did not
anticipate the property owners would take action to secure a demolition permit.
While this delay proved disastrous to preserving the Wright showroom, Chaban
maintains that the “outcome was likely inevitable,” as the Commission “is loath to
designate a landmark without the owner’s support” since the landlord, as opposed
to the City, is really the “steward of the space”.49 The Crain’s New York article by
Chaban, titled Frank Lloyd Wright Wronged on Park Avenue, consists of a quote by an
anonymous Commission spokeswoman who stated, “the showroom was dismantled
before the formal public designation process could begin. It is disappointing that
the owners in this case demonstrated a disregard for the process.”
Wright’s Park Avenue showroom is just one of many cases in past years that have
been destroyed as a result of this pre-‐notification loophole. The Commission must
sufficiently research a property before “calendaring” it, which is the first step in the
designation process. Meanwhile, the property owners are uninhibited from
applying for demolition and alteration permits, and there is no step that the DOB
and LPC can take to prevent the permitting process from happening.
Despite the fact that the showroom was considered an architectural gem to many,
distinguished architecture critic Ada Louis Huxtable was “lukewarm on the
showroom,” according to the same Crain’s New York article; she wrote in her 1966
book of its spiral ramp motif, “which was to be so beautiful an element in the
48 Chaban, Matt. “Frank Lloyd Wright Wronged on Park Avenue.” Crain's New York Business. 12 Apr. 2013.
49 Ibid.
34
Guggenheim, is employed here, though far less effectively, in part because of the low
ceiling and partly because the cramped, abrupt turning motion all too clearly recalls
the ramps of multifloor parking garages.”
Given that the space (shown demolished above)50 was renovated twice, in the 1980s
and then again in 2001, some critics are not sure that there was “any Wright worth
saving,”51 though ultimately the LPC should have had the opportunity to evaluate
the merits of the showroom. The debate would have been one worth having, and as
a consequence of the loophole that conversation did not happen. Under the law
considering property rights, the property owners were lawfully in the right, despite
their approach taking on an underhanded tenor. During the community outreach
phase, the property is not under regulation by the LPC and does not fall under the
rules of the New York Administrative Code’s Landmarks Law, meaning the property
owner may apply for and obtain a legitimate DOB permit during this time. Once the
property is officially under consideration by the LPC and the “C” is entered into the
50 Chaban, Matt. Showroom demolished. Digital image. Crain's, 12 Apr. 2013. 51 Chaban, Matt. “Frank Lloyd Wright Wronged on Park Avenue.”
35
DOB’s BIS system, the property falls under certain regulations by the LPC and DOB.
If the property is to be calendared, the DOB notifies the LPC that an application has
been filed; the LPC then has 40 days to take action and to give a Notice of Review
(NOR), which waives the hold on the DOB permit. At this point, the LPC may choose
to expedite designation in order to offer full protection under the law, however this
is rarely the case.
The lack of coordination between the two city agencies is partly to blame for this
occurrence, though there is also a question regarding turnaround time for the DOB.
According to the DOB Annual Report, 148,578 work permits were issued in 2012.
The report also states, “throughout the City in 2012, [there was] a slight increase in
major construction projects,” and “in Manhattan, new building permits increased
72%.”52 The rise in development and resultant increased workload for the DOB
begs the question of the relationship between the LPC and the DOB, and raises the
concern regarding why the DOB would not automatically check with the LPC, as a
matter of simple procedure, to ensure that the structure is not being considered for
designation. While this is a complicated matter, owners of potential landmarks are
able to move quickly enough through the system to secure permits in way that the
LPC designation process is undermined. While the DOB cannot be expected to check
with the LPC regarding every permit the agency receives, the LPC should notify the
DOB of properties for which the agency has received an RFE. This will be further
examined in the alternatives section of this report
52 “2012 Annual Report.” NYC Department of Buildings.
36
ODD JOB (FORMERLY PATERSON SILKS) BUILDING, UNION SQUARE.
Designed in 1949 by Morris Lapidus (1902-‐2001), the architect of several neo-‐
baroque Miami Modern hotels, the Odd Job (formerly Paterson Silks) Building, was a
modest yet quirky structure that stood at the corner of 14th Street and University
Place at Union Square.53 The two-‐story building featured a four-‐story glass-‐
enclosed tower, which slanted upwards towards the cross street.54 The building
was originally constructed for the Crawford Clothes Company and was then utilized
as a showcase retail outlet for Paterson Silks, and Odd Job occupied the property in
1998.55
Despite the building’s interesting history, an article in The City Review mentions,
“the Odd Job building was… entirely out of context with its important Union Square
neighbors” and argues that the “flair, however, does not elevate the building to
inspired status, or, more importantly, landmark status.” It is important to note in
this case that despite criticism of a building, it is not undeserving of consideration
for designation, and the LPC should have had an opportunity to discuss its case for
preservation. Unfortunately, only hours prior to the LPC’s decision to hold a public
hearing for designation, the building’s glass tower was demolished under a valid
DOB permit that had been acquired the previous week.
53 Mindel, Lee F. “The Architect's Eye: Two Neo-‐Baroque Hotels That Defined Miami Style.” Architectural Digest. 4 Dec. 2013. Web. 14 Nov. 2014.
54 Horsley, Carter. “Landmark Lunacy: Post Demolition Hearing.” The City Review. Web. 30 Sept. 2014.
55 Ibid.
37
The timeline is as follows:
1. LPC community outreach dates February 7, 2005.
2. DOB permit application dates March 1, 2005.
3. Property owners utilize DOB permit on March 8, 2005.56
4. LPC decision to calendar dates March 8, 2005.57
5. LPC denies motion to designate during hearing on May 17, 2005 because
demolition had already begun.58
In this case, the property owner was legally permitted to utilize a previously
acquired DOB permit to carry out significant alterations to the building – alterations
that would come to undercut the building’s designation eligibility. This case
illustrates that buildings fall victim to the designation timeline loophole just as the
LPC is conducting a survey on the building, prior to the LPC calendaring the
building. The problem lies with the decision to notify property owners that their
properties are under designation consideration by the LPC without also bestowing
some sort of protection on the potentially eligible properties. Below is a picture of
56 Ibid. 57 Dietrich, Gregory. 11. 58 Siegel, Jefferson. “Bid to Landmark Quirky Retail Building is Rejected.” The Villager. 31 May 2005. Web. 30 Sept. 2014.
38
the building before demolition59; the site is now home to a Bank of America branch
and 14-‐story condominium building.
59 Siegel, Jefferson. Former Paterson Silks building. Digital image. The Villager, 31 May 2005.
39
STAKEHOLDERS & EVALUATIVE CRITERIA
The following stakeholders are impacted by the issue regarding the designation
timeline loophole and should be considered when exploring feasible alternatives to
mitigate the system. Each stakeholder’s evaluative criteria are also indicated.
PRESERVATION ADVOCATES (INCLUDING ADVOCACY ORGANIZATIONS)
Preservationists and preservation advocacy organizations are most concerned with
preserving New York City’s architectural, cultural, and historical heritage. When the
legal means of protecting such sites is challenged, the organizations’ objectives are
also undermined. With no provisional protections against alteration or demolition
in place, potentially eligible buildings that preservation advocacy organizations fight
to protect are threatened. Such groups include the Greenwich Village Society for
Historic Preservation (GVSHP), the organization responsible for commissioning the
Gregory Dietrich study described previously in this report, the Historic Districts
Council (HDC), and the Municipal Art Society (MAS), among many others based
throughout New York City.
Evaluative criteria for preservation advocacy organizations includes the
safeguarding of potentially eligible properties until such a time that the LPC votes to
designate the property an individual landmark or designates the property within a
historic district. Preservation advocacy organizations would like to see the
designation timeline loophole closed so that more buildings can be protected and so
that property owners and particularly real estate developers cannot subvert the
LPC’s landmarking process, which consequently destroys historic fabric.
40
LANDMARKS PRESERVATION COMMISSION
The Landmarks Preservation Commission (LPC) is also concerned with preserving
New York City’s architectural, cultural, and historical heritage. The Commission,
which is “the largest municipal preservation agency in the nation,” is responsible for
offering protection through granting landmark or historic district designation. 60
When the agency’s fundamental mission is weakened, it questions whether the
government agency can carry out its responsibilities effectively and transparently.
The LPC would certainly desire an alternative solution that could resolve the
designation timeline loophole in order to secure a future for potentially eligible
buildings.
Evaluative criteria for the LPC includes the safeguarding of potentially eligible
properties until such a time that the agency votes to designate the property an
individual landmark or within a historic district. Additional evaluative criteria
includes the LPC maintaining credibility as an effective and transparent government
agency that carries out its mission to the full extent of the Landmarks Law.
DEPARTMENT OF BUILDINGS
While the Department of Buildings (DOB) cannot prioritize designated buildings due
to its responsibility of overseeing more than 975,000 buildings and properties, the
agency is an important stakeholder. As a courtesy to the LPC, the agency notifies the
LPC of any permit applications for buildings that are calendared or landmarked.
The DOB’s BIS system plays an important role in this process, and the
60 “About the Landmarks Preservation Commission.” NYC Landmarks Preservation Commission.
41
communication between the two city agencies suggests that the DOB offers a
valuable and necessary service for the designation process.
Evaluative criteria for the DOB include clear communication between the agency
and the LPC so that there is no miscommunication regarding potentially eligible
structures. The DOB does not want to be viewed as an opponent when approving a
permit for a building that could have potentially been eligible for designation.
LOCAL GOVERNMENT, CITY COUNCIL
New York City’s local government, particularly current Mayor Bill de Blasio and city
council, are stakeholders. Though not all councilmembers are in support of
preservation, they all do influence the designation process and have the authority to
enact strategies that close the designation timeline loophole. City council and the
mayor deal with significant political pressure and have to consider the effects that
landmark designation has upon all constituents, such as the LPC, DOB, the New York
City Housing Authority (NYCHA), real estate lobby, developers, and communities,
including local community boards. In terms of support and bringing important and
potentially eligible buildings to the agency’s attention, councilmembers could be
particularly beneficial to the LPC.
Evaluative criteria for the local government include closing the loophole so that the
LPC can carry out its mission. Additionally, the local government seeks to satisfy as
many constituents as possible, including the real estate lobby. Therefore, the local
government would like to see an alternative that mitigates the system while
simultaneously considering other factors such as housing and development.
Potentially, councilmembers would want more of a role in making the community
42
aware of the LPC and its mission in order to ease the designation process and
represent the needs of New York City’s various neighborhoods.
COMMUNITIES
Communities consist of renters and residents in general, local businesses, students,
tourists, and anyone who benefits from the culture, architecture, and historical
significance of the City’s built atmosphere. When potentially eligible buildings are
underhandedly destroyed whether by significant alterations or demolition, the
neighborhood is transformed; the atmosphere changes significantly, as demolitions
and alterations of this nature often bring new developments that alter
neighborhood dynamics. Such effects may include displacement, rising rental and
housing costs, and a loss in the sense of place.
Evaluative criteria for communities includes maintaining the sense of place through
protecting historic resources, ensuring economic prosperity while maintaining an
affordable cost of living, and being aware of the details of the designation process
regarding buildings in their neighborhoods. Communities do not want to find that a
well-‐known, potentially eligible building has been damaged over night due to a
loophole in the designation process; communities also want the designation
loophole to be mitigated.
REAL ESTATE LOBBY, DEVELOPERS
New York City’s real estate lobby and developers are responsible for an ever-‐
increasing demand and pressure on the city’s built fabric. This demand directly
43
relates to the exploitation of the designation timeline loophole, as developers
generally do not agree with the benefits of designation and regulation, as regulation
may seem to developers as too restrictive. The desire to create more housing,
particularly luxury housing, creates a complex dynamic between the City and
developers.61 As a result, the real estate lobby and developers have a vested interest
in the designation process as it applies to properties presenting future economic
gain. The Real Estate Board of New York (REBNY), for example, is a stakeholder
because the group does not want to see future designations of historic districts.
Evaluative criteria for New York City’s real estate lobby and developers include
fewer regulations by the LPC, as these stakeholders want access to undeveloped
space, regardless of designation status. REBNY specifically wants to see the LPC
placed “under the authority of the Deputy Mayor for Economic Development so that
historic preservation is more appropriately aligned with the City’s planning,
housing, and economic development efforts.”62
PROPERTY OWNERS
Property owners are stakeholders, whether or not they are in support of
preservation. Regardless, they are directly affected by the designation timeline
loophole, as they fall into one of two categories: those that take advantage of the
LPC’s current outreach practices by undermining the designation process, and those
that take advantage of the LPC’s current outreach practices by benefiting from the
direct interaction and integration into the designation process. Additionally,
61 “New York’s Historic Neighborhoods Are Still At Risk for Overdevelopment.” The Leonard Lopate Show. WNYC. 02 December 2014. Radio stream via web.
62 Spinola, Steven. “Proposed Reforms to Improve the Landmarks Preservation Commission.” CityLand. 12 Dec. 2013. Web. 18 Nov. 2014.
44
property owners of non-‐potentially eligible buildings are affected by the general
happenings of their respective neighborhoods, including any sort of issue that could
impact property values.
Evaluative criteria for property owners include having ultimate control over their
own properties and maintaining, if not increasing, property value. When under
regulation, property owners desire a reliable and predictable system that offers
clear rules regarding what changes are and are not admissible by the LPC.
FINAL EVALUATIVE CRITERIA
The seven stakeholders’ interests were considered to determine the final evaluative
criteria that will be further developed in the next section of the paper. The potential
alternatives to mitigate the current designation timeline loophole will endeavor to:
1. Close the loophole to protect potentially eligible structures prior to LPC
calendaring.
2. Preserve the LPC’s credibility by emphasizing its transparent system to
benefit other constituents such as the real estate lobby and property owners.
3. Strengthen direct communication between the LPC and DOB.
4. Increase councilmember support in the designation process.
45
ALTERNATIVES & ANALYSIS
Alternatives & Evaluative Criteria
Alternatives
Administrative Code Actions Non-‐Administrative Code Actions
No Action
Extend 40 Day Trigger Period
Revise Current
Timeframe
Legalize Current Outreach Practices
Eliminate Current Outreach Practices
Bolster Councilmember
Support
Evaluative Criteria
Close Loophole to Protect Potentially Eligible Structures
✓ ✓ ✓ ✓ ✗ ✗
Preserve LPC Credibility ✓ ✓ ✓ ✗ ✓ ✗
Strengthen Communication Between LPC and DOB
✓ ✓ ✓ ✗ ✓ ✗
Increase City Council
Involvement ✓ ✗ ✓ ✗ ✓ ✗
The above table indicates potential alternatives and which criteria are satisfied. To
evaluate these alternatives, the seven stakeholders’ interests are taken into account
and prioritized. The key stakeholders, including preservation advocacy
organizations and the Landmarks Preservation Commission (LPC), are two of the
most highly negatively impacted stakeholders. Therefore, the optimal alternative
should satisfy all or the ideal grouping of interests, with a main goal of protecting
potentially eligible properties until such a time that the LPC votes to calendar.
ADMINISTRATIVE CODE ACTIONS ALTERNATIVE 1: The first alternative that falls into the administrative code actions
category consists of extending the 40-‐day trigger period. The 40-‐day trigger period
could be extended in three distinct ways:
46
1. Extend the existing trigger period to a minimum of 60 days in order to afford
the LPC more time to evaluate DOB permits. Notable preservationists, such
as Andrew Berman from GVSHP, have confirmed that this alternative would
be beneficial. According to Mr. Berman, this would ensure that the LPC “is
able to act within the [time] granted them by the DOB if a developer or owner
does seek permits.”63
2. Write the existing 40-‐day trigger period into the New York Administrative
Code, since currently it is a DOB administrative action that is not written into
the official code and is simply a courtesy afforded to the LPC. In an informal
interview, Simeon Bankoff from HDC mentioned the policy should be written
into law to enforce transparency and strengthen the LPC’s power. Mr.
Bankoff added, “more precision would be helpful.”64
3. Extend the 40-‐day trigger period so that it applies to potentially eligible
structures that the LPC has yet to calendar. To make this alternative feasible,
Alternative 3 (explored below) must also be accomplished.
This group of alternatives accomplishes several evaluative criteria for the key
stakeholders, including tightening up the existing designation timeline loophole,
enforcing communication between the DOB and the LPC regarding potentially
eligible structures, and preserving (if not improving) credibility of the LPC in the
eyes of preservation advocates and the community. This group of alternatives could
be realistic if supported by city council; if councilmembers become involved, then
the fourth evaluative criterion would also be satisfied.
The negative aspect of this group of alternatives includes a lack of trade offs for
another stakeholder – the real estate lobby, including developers. However, as 63 Berman, Andrew. E-‐mail interview by author. 18 November 2014. 64 Bankoff, Simeon. Personal interview by author. 23 November 2014.
47
indicated on the above chart, extending the 40-‐day trigger period in any of the
above-‐mentioned ways would achieve the vision held by the key stakeholders and
would help solve this issue.
This solution entails both “sticks” and “carrots” – the “sticks” include potentially
increasing the cost to the property owner or developer when applying for a DOB
permit on a potentially eligible structure. This “stick” may not be feasible and/or
fair to those seeking a DOB permit, but it is important to consider. The “carrots”
include potentially offering a “fast track” decision by the LPC when the property
owner or developer applies for a DOB permit for a known, potentially eligible
structure, or offering a type of financial credit (reimbursed from the cost of the
permit application) to the property owner or developer if the LPC finds the
application to be appropriate. This would depend on an increase in the LPC staff,
which in turn would depend on an increase in the LPC’s budget.
The budget increase of four percent – from a fiscal 2015 executive budget of $5.3
million to a fiscal 2014 adopted budget of $5.0 million65 – reveals that the LPC’s
budget could, hypothetically, increase slightly in the fiscal year 2016. This could
allow the LPC to hire a staff member to carry out this alternative.
ALTERNATIVE 2: The second alternative that falls into the administrative code
actions category consists of revising the current designation timeframe. The
existing timeframe could be reviewed and amended in two distinct ways:
1. Give the LPC additional tools to expedite designation more frequently as
needed.
65 “Report on the Fiscal Year 2015 Executive Budget for Landmarks Preservation Commission.” The Council of the City of New York. 22 May 2014.
48
2. Commission a study that would determine the amount of time the LPC’s staff
needs in order to conduct research, and propose a new timeframe based off
the findings.
This alternative is more difficult than the first alternative and is not as feasible, since
several other factors need to be taken into account. Such factors include ensuring
that the commissioners, who are unpaid except for the chair, are available to meet
more often and/or on a different day of the week than the current schedule permits
(Tuesdays) and sidestepping the Administrative Code’s current requirements
regarding public hearings, as the presently enforced 10-‐day minimum notice of
public hearing would not benefit the system if designation needs to be expedited.
Additionally, there would need to be increased communication between the DOB
and LPC if such changes to the designation timeline were to occur.
This alternative satisfies several of the evaluative criteria, including tightening the
loophole to offer protection for potentially eligible structures, preserving the
credibility of the LPC in the eyes of preservation advocates and the community, and
strengthening communication between the DOB and the LPC. Additionally, this
alternative would need support from city council, thereby bolstering
councilmember involvement in the designation process.
ALTERNATIVE 3: The third alternative consists of writing current outreach
practices into the New York Administrative Code. Current outreach practices could
be legitimized in one distinct way:
1. Extend communication between the DOB and the LPC so that there is a step
preceding the “C” entered in the DOB’s BIS, specifically by entering a “PC” for
“Pre-‐Calendar” or “UR” for “Under Review” in the BIS system. This way, the
49
DOB can acknowledge a building that has been flagged by the LPC as a
building of interest, and may consequently notify the LPC of any permit
applications during this period. Potentially, this communication could begin
when the LPC receives a Request for Evaluation (RFE).
To carry out this alternative, the LPC’s enforcement department’s regulatory power
would need extend to potentially eligible properties that are under consideration,
but not calendared. This would include penalties that the LPC currently carries out
on property owners that do not abide by the LPC’s regulation. Additionally, this
alternative involves invalidating DOB permits for buildings that are subsequently
calendared.
A bill first proposed in 2007 by Manhattan Councilmember Rosie Mendez called for
a similar action. The bill, Intro. 542A, would require that the DOB revoke previously
issued permits for façade work if a building is designated as a landmark.66
According to Gregory Dietrich, there was potential with Councilmember Rosie
Mendez’s bill; the matter is that it is quite a task to convince those on the City’s Land
Use Committee that preservation is within the realm of public interest.67 Mr.
Bankoff indicates that Intro. 542A, which has not been re-‐introduced, is a good idea
and closes the designation loophole by strengthening the ability of the LPC to
protect historic resources.68 Mr. Berman argues that the biggest obstacles to
passing a bill such as 542A include the “power the real estate industry has over the
process and city government. In the past the Speaker would not allow a vote on the
66 Jonas, Jillian. “Closing the Landmarks Loophole.” Gotham Gazette. 29 July 2009. 67 Dietrich, Gregory. Phone interview by author. 18 November 2014. 68 Bankoff, Simeon. Personal interview by author. 23 November 2014.
50
bill, largely because ([he] would speculate) of a desire not to antagonize powerful
real estate interests.”69
This alternative accomplishes all of the prioritized evaluative criteria, including
tightening the loophole to offer protection for potentially eligible structures,
preserving the credibility and power of the LPC, and strengthening communication
between the DOB and the LPC.
Writing current outreach practices into the New York Administrative Code could be
potentially feasible in the future, though this alternative would need immense
support from preservation-‐minded councilmembers, as closing the loophole
through this system carries negative impacts, such as narrowing the window of
redevelopment opportunity for the real estate lobby, a group that currently holds
immense political power in New York City.
NON-‐ADMINISTRATIVE CODE ACTIONS ALTERNATIVE 4: The fourth alternative falls into the non-‐administrative code
actions category and consists of eliminating current non-‐mandatory community
outreach practices. Current community outreach could be eliminated in one distinct
way:
1. Returning to the LPC’s original system of notification, whereby property
owners are notified that their buildings are under consideration for
designation through a public hearing notice sent ten days prior to the
hearing.
69 Berman, Andrew. E-‐mail interview by author. 18 November 2014.
51
This alternative only satisfies one stakeholder – preservation advocacy
organizations. While the evaluative criteria of this group has been prioritized, none
of the remaining stakeholders’ evaluate criteria are satisfied. Therefore, this
alternative is not the strongest option for mitigating the system. Eliminating
current community outreach would negatively impact the remaining stakeholders
and this alternative runs the risk of the LPC actually losing credibility in the eyes of
property owners and the community, who welcome public participation and
transparency.
Politically feasible and legal, according to Mr. Bankoff,70 carrying out this alternative
would close the designation timeline loophole. However, the consequences of this
action likely exceed this tremendous benefit of solving the problem.
ALTERNATIVE 5: The fifth alternative falls into the non-‐administrative code actions
category and consists of bolstering councilmember support. Councilmember
support could be bolstered in one distinct way:
1. Encouraging roundtable discussions so that the LPC receives additional
political support and, therefore, better connects with the community
regarding the designation process.
While this alternative does not tighten the loophole on its own, increased
councilmember support could lead to support for the protection of potentially
eligible structures. Other evaluative criteria that this alternative satisfies include
preserving – and potentially strengthening – LPC credibility and likely
strengthening communication between the DOB and the LPC.
70 Bankoff, Simeon. Personal interview by author. 23 November 2014.
52
Councilmembers who affirm designation could flag areas where the LPC has not
done recent designations could increase support for the agency, depending on the
stakeholders’ perspectives. Additionally, councilmembers who support
preservation could encourage more councilmembers that preservation is within the
public interest and has a public purpose. The negative consequence of this
alternative affects the real estate lobby, a group against increased preservation
support.
NO ACTION
ALTERNATIVE 6: The sixth alternative consists of no action. If no policy work is
done, then the issue will continue to harm historic resources and potentially eligible
buildings will continue to be threatened. There will be an increased loss of historic
fabric, which could have been safeguarded by the LPC. The harms associated with
this problem will endure, such as a loss sense of place, blight, and an increased cost
of living that is swiftly becoming increasingly unaffordable for the majority.
Developers will want to move faster and will continue to undercut the designation
process. If this issue is not resolved now, it will become a larger problem in the
future.
The GVSHP study referred to throughout this report reveals that over the course of
the Bloomberg Administration alone, more than 20 historically valuable buildings
were severely altered or demolished as a result of the designation timeline loophole.
Likely, there are similar cases that occurred prior to and during the Bloomberg
Administration. As the current administration shifts its focus to ensuring more
affordable housing, it is possible that this issue will be overlooked. If so, it is
necessary that a feasible solution be implemented as soon as possible so as to avoid
future loss of potentially eligible structures.
53
RECCOMENDED ALTERNATIVE
While an ideal alternative would simply entail correcting the perception of
designation to prevent property owners and developers from exploiting the
loophole, this is not feasible. As a result, the preferred alternative is based on an
analysis of the advantages and trade offs for each stakeholder. As indicated by the
chart in the Alternatives & Analysis section and the chart below, an ideal alternative
would consist of a combination of proposed suggestions. Extending the 40-‐day
trigger period, writing current outreach practices into law, and bolstering
councilmember interaction would be good for the key stakeholders – advocacy
organizations and the LPC – in addition to the community, pro-‐preservation
property owners, and the local government.
The LPC views its community outreach practice as an opportunity for the agency to
have a dialogue with property owners. This conversation consists of discussing the
designation process and its implications, and also serves as an opportunity to
Alternatives & Stakeholders
Alternatives
Administrative Code Actions Non-‐Administrative Code Actions
No Action
Extend 40 Day Trigger Period
Revise Current
Timeframe
Legalize Current Outreach Practices
Eliminate Current Outreach Practices
Bolster Councilmember
Support
Stakeholders
Preservation Advocacy ✓ ✓ ✓ ✓ ✓ ✗
LPC ✓ ✓ ✓ ✗ ✓ ✗ DOB ✗ ✓ ✓ Local
Government ✓ ✗ ✓
Communities ✓ ✓ ✓ ✗ ✓ ✗
Real Estate Lobby ✗ ✗ ✗ ✗ ✗ ✓
Property Owners ✓ ✗ ✓
54
convey the benefits of designating a property.71 The benefits of community
outreach are substantial and the practice should not be eliminated, but rather
written into the City’s Administrative Code in order to offer protections to
potentially eligible buildings as discussed in the previous section.
While there is no “cost-‐free” solution, this combination of alternatives would tighten
the designation loophole while encouraging support from New York City’s local
government. The LPC is a small agency that faces substantial pressure; to facilitate a
feasible alternative, increased support is needed at the local government level.
As indicated in the above chart, preservation advocacy organizations and the LPC
would be satisfied with the recommended combination alternative. Unfortunately,
despite considering the real estate lobby’s evaluative criteria, this stakeholder
would not be satisfied with any of the proposed alternatives except for the No
Action alternative, which is not preferred by any other stakeholder. This
alternative could, however, consist of a quid pro quo where in exchange for stronger
protections on potentially eligible buildings, the LPC would forgo future designation
opportunities on structures that have not been calendared within a certain
timeframe. Real estate and developer stakeholders would then benefit from this
alternative.
Therefore, the preferred alternative is a combination of Alternatives 1, 3, and 5:
1. Extending the 40-‐day trigger period.
2. Writing current outreach practices into the New York Administrative Code.
3. Bolstering councilmember support
71 Owen, Michael. Phone interview by author. 02 December 2014.
55
CONCLUSION
The intent of the LPC is to uphold standards of good government by respecting
transparency laws and private property rights. The history of preservation legal
battles indicates that higher courts uphold preservation commission decisions on
the basis that preservation serves a public good. The LPC’s current community
outreach practices exceed the legal standards; while the goal is to bolster
transparency through an ongoing dialogue with property owners, an unintentional
side effect results in the loss of some of the City’s historic resources. While the
exploitation of the designation timeline loophole is not an everyday occurrence, the
small number of structures that have been lost is significant.
The preservation community wants to see a stronger safeguarding of potentially
eligible buildings, and trusting property owners and developers to not manipulate
the loophole is impractical. The next step is for preservation advocacy
organizations to emphasize the harms regarding this issue to the local government
and the community. Additionally, with REBNY under new leadership, it may be time
to take a more reasonable tone with the real estate lobby to understand how such
immensely opposing groups can simultaneously direct the future of New York City’s
built framework.
The deep harm is based on the loss of architectural, cultural, and historical heritage
of New York City in an underhanded scheme that weakens the LPC’s mission, the
Landmarks Law, and preservation in general.
56
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INTERVIEWS
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Dietrich, Gregory. Phone interview by author. 18 November 2014.
60
Owen, Michael. E-‐mail interview by author. 09 December 2014.
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