certificate of appropriateness

In a decision dated October 30, 2018, Supreme Court Judge Joseph Pastoressa remanded a decision made by the Southampton Village Architectural and Historic Board (BARHP) for further consideration. Manger et al. v. Board of Architectural Review and Historic Review of the Village of Southampton.

 The property owner in Manger applied to the BARHP for a certificate of appropriateness to construct a single family dwelling and accessory structures on two separate lots in the Village of Southampton. The lots are in a Historic District which requires a Certificate of Appropriateness as a condition precedent to issuing a building permit.

During the public hearing process that resulted in an approval of the application, the Board stated that it could not consider the size of the house in its review of the proposed construction. The Board took this position because the house as proposed fully complied with the Zoning Code of the Village of Southampton. That position was supported by Board precedent and a prior decision in Ferrara v. Board of Architectural Review.

Immediate neighbors of the property brought the Article 78 proceeding and argued that scale and size were different measurements and the Board could consider the scale of houses and any corresponding impact on the neighboring properties. Alternatively, the property owner and Village argued that if a house complied with Zoning then the BARHP was powerless to require a reduction in size. Ultimately, Judge Pastoressa rejected that argument and sent the matter back to the Board for re-consideration.

This case highlights the tension between the Zoning Code and the Historic and Landmark Preservation Code. Historically, zoning was enacted to protect light and air between properties. This protection is accomplished through setbacks and the restrictions on the size of a structure. One of the stated considerations of the Historic and Landmark Preservation Law is the impact of new construction on the character of nearby properties.

As held by Judge Pastoressa, the BARHP now may consider the impact of new construction on surrounding properties. But, that consideration still must include an analysis of the new construction under Zoning Code provisions.

Since the Declaration of Purposes of the Zoning Code (§116-1) and the Legislative Findings and Intent (§65-1) in the Historic and Landmark Preservation Law share many common core goals, compliance with the Zoning Code is certainly compelling if not overwhelming evidence that the mass and scale of new construction is appropriate.  So, while the option to reduce the size of a structure is seemingly available to the BAHRP, it must show that the Zoning Code somehow failed to achieve one of its basic goals. There must be significant evidence showing an impact not addressed by the Zoning Code for the BARHP to reduce the size of a structure under that which is allowed by Zoning.

Ultimately, this leaves a potential purchaser of real property in a bind. Any advice by counsel to a purchaser must be given with a caveat that the BAHRP has final say and compliance with the Zoning Code does not guarantee approval.

 

In Matter of Save America’s Clocks, Inc. v. City of New York, the majority of a divided 3-2 Appellate Division, First Department, panel attempted to clarify the authority of the New York City Landmarks Preservation Commission (LPC) under the New York City Landmarks Preservation and Historic Districts Law (“Landmarks Law”).  The majority ruled that the LPC may require a private owner of property purchased subject to a prior interior landmark designation to preserve the historic character and operation of the interior landmark and to continue to permit at least minimal public access to it.

The case involved a 19th Century building in lower Manhattan and, in particular, the clocktower atop the building’s western end, which houses a purely mechanical tower clock with a mechanism similar to London’s “Big Ben.” A room on the building’s fourteenth floor has an interior spiral staircase that leads up to a landing housing the clock’s pendulum, and then to the clocktower’s machine room, where the clock mechanism sits.  Above the mechanism is the clock’s 5,000 pound bell.

New York City owned the building from 1968 until 2013, and used it to house courts and city government offices.  During that time, the LPC designated the exterior of the building a landmark, as well as 10 interior spaces of the building as interior landmarks, including the clocktower gallery, the clocktower machinery room, and the “No. 4 Striking Tower Clock.”  The City conveyed the building to a private developer in December 2013, by a deed that expressly provided that the conveyance was subject to the landmark designation.

Shortly thereafter, the new owner submitted an application for a certificate of appropriateness (COA) to the LPC, seeking permission to refurbish the building’s exterior and interior and to modify some of the landmarked interior spaces. Among other things, the application requested permission to convert the clocktower into a triplex private apartment, to disconnect the clock from its mechanism, and to electrify the clock.

The LPC held a public hearing on the owner’s application. There, the LPC’s counsel advised the commissioners that the LPC did not have the power under the Landmarks Law to require “interior-designated spaces to remain public” and “to require that [the clock] mechanism remain operable.” The LPC then approved the COA.

After various individuals and organizations challenged the LPC’s decision in an article 78 proceeding, a decision by Supreme Court, New York County, partially annulled the COA to the extent that it allowed work inside the clocktower that would completely eliminate public access and allowed work that would convert the clock from a mechanical to an electrical system of operation.  The decision was appealed to the Appellate Division, First Department.

Over the dissent of two justices, a majority of the panel affirmed the Supreme Court’s decision after finding that LPC’s determination was irrational and affected by an error of law because it was based on the erroneous advice of its counsel that caused a misunderstanding of LPC’s authority under the Landmarks Law.  The court concluded that, contrary to the legal advice it received, the LPC has the authority under the Landmarks Law to regulate the clock mechanism because it effectuates the Landmarks Law’s statutory purposes and because the law’s language “clearly gives the LPC authority to require the owner to run the clock by its still functioning mechanism and to deny the request to electrify it.”

The court reasoned that the LPC had designated the building’s fourteenth floor interior, including the clocktower machinery room and the clock machinery, as an interior landmark because the clock’s mechanism “represents an element of the city’s cultural and economic history and contributes to the building’s historical value,” and because maintaining it “would promote pride in the ‘accomplishments of the past’ and advance the [Landmarks Law’s] statutory purposes.”

Moreover, the court said, the LPC’s approval of the clock mechanism proposal was not rational. In the court’s view, the building’s “majestic clock, and its historically significant functioning mechanism, is a perfect example of the very reason the Landmarks Law exists,” because, as provided in Section 25-301(b), the “protection, . . . perpetuation, and use of [objects] of special character or special historical or aesthetic interest or value is a public necessity.”

The court also examined whether the LPC has the authority to retain public access to the clocktower, and ruled that, under the Landmarks Law, the LPC may reject a COA that would cause a designated interior to be inaccessible to the public, and may require the owner to continue to provide at least some degree of public access.  The court reasoned that the statutory purposes of the Landmarks Law would be thwarted if the public was denied access to the clocktower and the opportunity to view its historic mechanism.

Whether the First Department’s decision will be the final word on this issue remains to be seen as the sharp division in the panel makes it likely that the case will make its way up to the Court of Appeals.  For now, however, the decision means that the Landmarks Law permits the LPC to require the private owner of property purchased subject to a prior interior landmark designation to preserve the historic character and operation of the interior landmark and to continue to permit at least minimal public access to it.