We are officially amici in support of saving America’s clocks! Our brief to the New York Court of Appeals has been accepted by the Court (November 14, 2018). The brief seeks affirmance of the decision of the Appellate Division, First Department, voiding a permit from the Landmarks Preservation Commission. The permit would have allowed the owner of 346 Broadway to strip the publicly visible clock on top of the building of its 1890s weights, pendulums and other workings that make it tick, to substitute an electrical drive and close the clocktower to public visitation.
In its brief to the Court of Appeals, the City urged that the Commission is governed by rules that are quite different from what we have previously heard. Rather than following the usual course of applying law to facts, the Commission’s job, the City stated, is to negotiate for the best deal it can get. The beauty of this theory, the City added, is that it makes the result almost impossible for a court to overturn. If there is no legal standard, the Commission simply applies its expertise and judgment to whatever concessions it can and cannot obtain from the owner.
In our brief, we focused on an issue that goes far beyond any one specific landmarked structure. What the law requires (or so we argue), is that the Commission identify the many guidelines the Landmarks Law contains for decisions on applications for certificates of appropriateness. The very phrase – certificates of appropriateness – implies an objective decision on whether the proposed alteration meets standards for proper preservation. Is the proposed work appropriate? Not, what is the best result we can wheedle from this particular owner?
Amazingly, a premise underlying the City’s argument is that any landmark owner has a constitutional right to maximum leeway, in the way of alteration, to make a building more practical or suit the owner’s desires better. One can readily imagine the frame of mind that encourages when an owner sits down at the table to negotiate with the Commission knowing that the Commission has thrown away almost all its leverage by conceding that the owner can do pretty much what it wants to.
This was illustrated in the course of a public hearing by the Commission on the application before it. A Commissioner asked the owner’s architect whether it would not be possible to create a passage by which the public could continue to visit the clocktower, as it had for many years, to see such an intricate old-fashioned system in operation. The architect answered, quite simply, that it is possible, but the owner does not intend to do so. And that is where the matter was left.
This is not preservation. It is capitulation. It is a formula for rapidly losing our heritage.
The City Club leads a roster of outstanding preservation oriented organizations in this endeavor: The Brooklyn Heights Association, Friends of the Upper East Side Historic Districts, Greenwich Village Society for Historic Preservation, Human-Scale NYC, Landmark West!, and the New York Metropolitan Chapter the Victorian Society in America. The Historic Districts Council and Tribeca Trust are petitioners and, therefore, not on the amicus brief. City Club lawyers, Michael Gruen and John Low-Beer, wrote the amicus brief.
A copy of the brief is available here.