Regulating Interior Landmarks

What powers does the New York City Landmarks Preservation Commission (LPC) have to require a building owner to maintain a mechanical clock located in the interior of a building? In Save America's Clocks, Inc. v. City of New York, 2017 WL 5969265, that issue generated a 3-2 division in the First Department, with the majority holding that the Commission had power to require maintenance of the clock, and to require public access to it. The case appears likely to find its way to the Court of Appeals.

The Save the Clocks Case

In 1989, the LPC designated a mechanical clock located in a gallery at 346 Broadway as an interior landmark. At the time, the building was owned by the City of New York, and the clock was maintained by a city worker, who would wind, oil and maintain the clock, and who gave weekly tours to members of the public. In 2013, the city sold the building to a private owner with a plan to repurpose the building for a combination of retail and residential hotel uses, and a community facility used for a digital media arts center. The deed indicated that the purchase was subject to the 1989 notice of landmark designation.

The following year, the new owner of the building applied to the LPC for a certificate of appropriateness (COA) to enable conversion of the clocktower space into a triplex private apartment, to disconnect the mechanical mechanism of the clock, and to electrify it. At the public hearing, a variety of LPC commissioners expressed misgivings about the proposal, but the LPC counsel informed the commissioners that the LPC did not have power under the Landmarks Law to require interior-designated spaces to remain public, or to require the clock mechanism to remain operable. In light of the opinion by Counsel, the LPC approved the COA. A community group brought an article 78 proceeding challenging the LPC's determination, and Supreme Court granted the petition, holding that the LPC's determination was affected by a mistake of law. The city and the building's owner appealed.

The Appellate Division majority did not question the LPC's power to grant the COA if the LPC did so with a complete understanding of its legal authority. But the majority, in an opinion by Justice Gesmer, concluded that the LPC counsel's advice was incorrect, and that the LPC's determination was therefore the product of a misunderstanding of its authority.

Authority to Mandate the Clock's Continued Operation

Section 25-302 of the Landmarks Law defines “interior architectural feature” to include “components of an interior, including, but not limited to … the type and style of all … fixtures appurtenant to such interior.” The Appellate Division majority and the dissenters agreed that, in light of this definition, the clock mechanism constitutes an interior architectural feature. The justices disagreed, however, over whether the Landmarks Law permits the LPC to require the owner to operate the clock mechanism. Justice Gesmer, writing for the majority, relied on section 25-304(b) of the statute to conclude that the LPC had such authority. Section 25-304(b) authorizes the LPC to “impose, with respect to the … use of [a designated landmark] … regulations, limitations, determinations or conditions which are more restrictive than those prescribed or made by or pursuant to other provisions of law applicable to such activities, work or use.”

Justice Kahn, dissenting, rejected that broad interpretation of section 25-304(b), emphasizing that the stated purpose of the Landmarks Law is to “effect and accomplish the protection, enforcement and perpetuation of … improvements” (Section 25-301). In her view, the statute permitted authorized the LPC to require preservation of the clock mechanism, but not to require continued operation of that mechanism. Moreover, she argued that the court should defer to the LPC's expertise on whether the definition of “interior architectural feature” included actual operation of the clock mechanism.

Although section 25-304(b) provides plausible linguistic support for the majority's position, the majority's reading suggests no limits on the power of the LPC to impose conditions on operations of an interior landmark. Whether the statutory language was intended to permit the LPC to impose ongoing affirmative obligations on the owner of an interior landmark — such as winding, oiling, and maintaining the clock — is an issue not free from doubt.

Public Access

The justices also disagreed about whether the Landmarks Law conferred on the LPC authority to require a private owner to provide public access to an interior landmark. The justices attached different readings to section 25-302(m) of the statute. The dissenters argued that the statute required only that, to qualify for landmark protection, an interior landmark be accessible to the public at the time of designation. They contended that the statute conferred no authority on the LPC to mandate permanent public access. The majority, by contrast, argued that the statute “contemplates that interior landmakrs shall remain accessible to the public in the future.”

Finally, the justices disagreed about whether requiring a private landowner to provide public access to an interior landmark would work an unconstitutional taking. The Supreme Court's decisions in Nollan v. California Coastal Commission, 483 US 825, 831, and Dolan v. City of Tigard, 512 US 374, assume that a government requirement that a private landowner provide permanent access to the public would constitute a taking. That assumption is based on the Court's broader principle that a permanent physical occupation of landowner's property constitutes a per-se taking — a principle articulated in Loretto v. Teleprompter Manhattan CATV, 458 U.S. 419, where the Court invalidated a requirement that a landlord permit installation of a cable television box on a Manhattan building. Moreover, the Court of Appeals has applied the basic principle in Seawall Associates v. City of New York, 74 NY2d 92, where the Court held that the city's effort to require landlords to maintain single room occupancy buildings at controlled rents for an indefinite period constituted a physical taking. The dissenters relied on Nollan in particular to support the position that a physical access requirement would raise constitutional issues.

The majority's response, which relied primarily on Penn Cent. Transp. Co v. City of New York, 438 U.S. 104, ignored the doctrinal distinction between regulatory takings and physical takings. Whether a limited public access requirement falls afoul of the constitutional prohibition of permanent physical occupations is a question not free from doubt, but citation to Penn Central, a case in which there was no allegation of a physical taking, does not advance analysis.

Conclusion

Both the statutory and the constitutional issues raised by Save the Clocks are important ones, and the sharp division in the First Department suggests that the issues are ripe for the Court of Appeals.

***** Stewart E. Sterk, Mack Professor of Law at Benjamin Cardozo School of Law, is the Editor-in-Chief of New York Real Estate Law Reporter.