Save America’s Clocks v. New York

App Div of the NY Supreme Court, 1st Department, 101109/15, 3422, November 30, 2017: NYC interior landmark designation allows Landmarks Preservation Comm. to reject interior alterations and require public access.

The court held that the New York City Landmarks Preservation Commission (LPC) has the power under the City’s Landmarks Preservation and Historic Districts Law (Administrative Code of City of NY § 25-301 et seq; “NYC Landmarks Law”) to require an owner to preserve the historic character and operation of an interior landmark and to continue to allow at least minimal public access to it, pursuant to a landmark designation in place when the owner purchased the property.

The interior landmark in this case is a room in the clocktower of a neo-Italian Renaissance style building designed by the McKim, Mead & White architectural firm and built in the 1890s. The room contains the mechanisms of a clock which is “the largest of the few purely mechanical tower clocks of its kind in New York. Indeed, the only other clock in the world with a similar mechanism is the one atop Westminster Palace known as Big Ben.”

In 1968, New York City acquired the building and while the building was still owned by the City, the LPC designated it as an Interior Landmark. In December 2013, the City sold the building to Civic Center Community Group Broadway LLC (owner) and the deed provided that the purchase was subject, inter alia, to a recorded Notice of the Landmark Designation.  In October 2014, the owner applied to the LPC for a Certificate of Appropriateness (COA) seeking permission to alter the exterior and interior of the building, including permission to convert the clocktower into a triplex private apartment, to disconnect the clock from its mechanism, and to electrify the clock. The court noted that “[t]his case marks the first time an owner has asked to convert an interior landmark into a private residence.”

At the COA hearing the LPC’s counsel stated that the LPC does not have “power under the Landmarks law to require interior-designated spaces to remain public” and “to require that [the clock] mechanism remain operable.” All but one of the LPC commissioners voted to approve the COA allowing the proposed changes to the clocktower and stated that they wanted to require that the historic mechanism continue to operate, but that they accepted the LPC counsel’s opinion. The one commissioner who said she did not accept the counsel’s opinion voted against the COA.

Notwithstanding the LPC counsel’s opinion, the approved COA also directed that the owner execute and record a restrictive declaration requiring that the owner provide public access to the “main Banking Hall,” another of the building’s interior landmarks, and not use it for residential purposes.

At the request of Save America’s Clocks, a lower court granted a petition to partially annul the COA because the approval of the COA was “affected by a mistake of law, to the extent that it approved the electrification of the clock and the elimination of public access to the clocktower, and that it lacked a rational basis for its decision on the public access issue.” The City appealed.

The court held that the LPC’s approval of the COA was both irrational and affected by an error of law, upholding the lower court’s annulment of the COA. The error of law was in reliance on the opinion of counsel that the LPC had no authority to require public access of any kind to an interior landmark, and to require that the clock’s historic mechanism continue to operate. The court found the LPC’s authority in the purposes of the NYC Landmarks Law and the statutory language.

Paraphrasing the purposes of the Landmarks Law (Landmarks Law § 25-301[b]) the court wrote, “[P]reserving the public’s access to landmarked spaces furthers the statutory purpose. It is difficult to see how an interior landmark located in a private home can foster civic pride in the city’s past, educate our citizens, enhance tourism and provide the stimulus to business and industry that tourism provides. Thus, the statutory purposes are thwarted if the public is denied access to the clocktower and the opportunity to view its historic mechanism.”

Regarding the statutory language, the court held that Landmarks Law § 25-304[b] gives the LPC broad authority to regulate, limit or condition proposed alterations to landmarked interiors, noting that the LPC used this very same authority by requiring that the building’s landmarked banking hall remain open to the public and not be used for residential purposes. The court said that when Landmarks Law § 25-302[m] provides that a previously designated interior landmark “is” customarily open to the public, or the public “is” customarily invited to such spaces, the Landmarks Law contemplates that interior landmarks shall remain accessible to the public in the future. “[T]he plain language of the Landmarks Law,” the court wrote, “requires that, once designated, an interior landmark is and shall remain accessible by the public.”

The court rejected the City’s assertion that requiring some continued public access to the clocktower would constitute a “taking,” both because this regulation of private property meets the Penn Central standard of “reasonably necessary to effectuate a substantial public purpose” while still allowing the owner the reasonable beneficial use of the property (Penn Cent. Transp. Co. v City of New York, 438 US 104, 138 [1978]) and because the owner purchased the building by a deed that specifies that the transfer is subject to the landmark designation.

The decision was by a three-to-two majority. The minority wrote a dissent.

Decision available at http://www.nycourts.gov/reporter/3dseries/2017/2017_08457.htm, (2017 NY Slip Op 08457)

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