Posted by: Patricia Salkin | March 30, 2019

NY Court of Appeals Rules that Landmarks Commission Acted Reasonably in Approving Development Plans

This post was authored by Amy Lavine, Esq.

The New York State Court of Appeals issued a decision on historic preservation regulations last month in Matter of Save America’s Clocks, Inc. v City of New York, 2019 WL 1385906 (N.Y. 3/28/2019). The case involved a historic building in New York City that was particularly notable for its clock tower and the gallery space that overlooked the large and ornate mechanical clockworks. These parts of the building were designated as an “interior landmark” under the New York City Landmarks Preservation Law, and this required the owner of the building to obtain approval from the Landmarks Preservation Commission (LPC) before for making any changes or modifications that would affect its historic character. When the property was purchased in 2013 by a developer that planned to convert the structure into luxury housing, it accordingly submitted its plans to the LPC and requested a certificate of appropriateness (COA). The LPC then held two public hearings and conducted a site visit, and it ultimately concluded that the developer’s restoration investments would outweigh any negative impacts that might result from the developer’s proposal.

The petitioners, a coalition of opponents to the project, commenced this litigation seeking to overturn the LPC’s decision granting the COA. Their appeal was limited to two issues: whether the LPC had authority to approve changes that would restrict public access to an interior landmark, and whether it was reasonable for the LPC to allow the clock tower to be converted to electric power. The trial court ruled in the petitioners’ favor on both issues and annulled the LPC’s decision. A majority of the Appellate Division affirmed, although one judge wrote a separate dissent. The Court of Appeals also failed to reach a consensus judgment, and one judge wrote separately in dissent, but the majority reversed the decisions made by the trial and appellate courts and instead concluded that the LPC’s decision was rational and entitled to deference.

In affirming the LPC’s decision, the court emphasized that it conducted an extensive deliberative process, including holding several public meetings and encouraging a dialogue between staff members and the property owner. It ultimately based its decision on its findings that “the main lobby, stair hall, clock tower rooms and banking hall w[ould] be fully restored, and the clock mechanism and faces w[ould] be retained, thereby preserving these significant features.” As the court noted, these were all reasonable considerations within the purposes of the landmarks law.

The petitioners claimed more specifically that the COA was unreasonable because it would allow the clock tower to be closed off from public access. They claimed that this was inconsistent with the landmarks law, which defined an “interior landmark” as “[a]n interior, or part thereof, any part of which is thirty years old or older, and which is customarily open or accessible to the public, or to which the public is customarily invited, and which has a special historical or aesthetic interest or value.” But the court was more persuaded by the LPC’s position that “public access is a threshold condition, not an ongoing one.” This was the logical conclusion to draw from the general structure and purposes of the COA procedure, the court explained, as the alteration and even demolition of designated properties was inherently contemplated by the COA process.

The court also concluded that it was reasonable for the LPC to allow the clock to be electrified. It quoted the dissenting Appellate Division opinion on this point, which noted that “the operation of the clock would be modernized by electrification, thereby assuring its continued maintenance for the foreseeable future, and the visibility of exterior clock faces to the public would be enhanced by LED or some other form of modernized lighting, while the clock faces would remain in their original, pristine condition. The COA also makes plain the LPC’s finding that the developer’s plan would ensure that “the clock mechanism and faces will be retained, thereby preserving these significant features.” As with the issue of public access, the court found that these were reasonable considerations and that the LPC’s determination “constituted a rational exercise of [its] discretion based on its unique expertise.”

As a final matter, the court found that the LPC’s determination was not subject to any error of law based on remarks made by the LPC’s attorney at one of the public hearings. The petitioners could not porove that the LPC’s decision was based on these statements, and as the court explained, the LPC’s reasons were actually set forth in the COA and showed that it appropriately “determined the work to be appropriate.”

Save America’s Clocks Inc. v City of New York, 2019 WL 1385906 (NY 3/28/2019).

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