Clock Tower LPC Certificate Annulled By Court

346 Broadway, Manhattan. Image Credit: CityLand.

346 Broadway, Manhattan. Image Credit: CityLand.

Justice found Landmarks had authority mandate public access to interior landmark, and require that historic clock’s operation remain mechanical. The Landmarks Preservation Commission designated the interior of the former New York Life Insurance Company Building, at 346 Broadway as an interior landmark in 1987.  The designated space includes the “Clocktower Suite” inside a tower at the top of the building. A spiral staircase and machinery room for the four clock faces on the tower, as well as a 5000-pound cast bell with hammer are contained within the suite. The clock is one of the few remaining in the country that are still operated mechanically, needing to be periodically manually wound,  rather than converted to electronic or digital operation.

At the time of designation, the building was owned by the City and occupied with offices and an art gallery in the clock tower suite.  Because of the City’s ownership of the building, the interior met the public accessibility standard allowing it to be designated. The City sold the property in 2013 to the Peebles Corporation and the Ed Ad Group.

In 2014, Landmarks considered an application by the owners for work to convert the building into residential use. The plan, designed by the firm Beyer Blinder Belle, included work affecting the clock tower. The building would be converted to a condominium, and the tower into a single a private residence, no longer accessible to the public. The clock mechanism would be retained and weatherproofed, but disconnected and replaced by electrification.

At the public meeting, commissioners were advised by Landmarks’ counsel that the commission did not have the authority to mandate that the tower remain accessible to the public. Even though privately owned, Landmark would retain oversight of the landmarked features, and any alteration would need Landmarks’ approval.  The commission also could not mandate that clock mechanism remain operable, only that it be preserved.

Counsel Mark Silberman said that the interior would likely not be considered for interior designation, because its accessibility to the public hinged on its ownership, rather than its use. The majority of the City’s interior landmarks are publicly accessible by their nature, such as restaurant interior and theaters.

The commission voted to approve the project with only commissioner Adi Shamir-Baron dissenting. The certificate of appropriateness included language  that the interiors would continue to be subject to the requirements of the landmarks, law, that that the owners continue to operate the clock faces, and that access be allowed for periodic inspections and for response to complaints.

A coalition of individuals and preservationist organizations filed an article 78 petition, seeking to annul the certificate of appropriateness. The petitioners argued that the permitting the project was tantamount to a rescission of the designation, since it would permanently cut off the interior landmark from public access. The certificate of appropriateness procedure, the coalition argued, was not a mechanism through which an applicant could convert an interior landmark into private use. They argued that Landmarks wrongly determined that the agency lacked power to mandate that the clock be publicly accessible, or that the clock be maintained in its mechanical, not digital, state.

Justice Lynn R. Kotler annulled the certificate of appropriateness and remanded the decision to Landmarks, ruling that the agency acted arbitrarily and irrationally in granting the certificate of appropriateness. Kotler held that the defining characteristic of an interior landmark was that it customarily be open or accessible to the public, and that Landmarks acted irrationally in issuing a permit that would render the landmark ineligible for designation. Kotler wrote that to authorize the elimination of the public access required the separate and more stringent procedure of rescinding the designation.

Kotler further determined that Landmark’s decision allowing the clock to be converted from mechanical to electric operation was made under an error of law.  She found commissioners were incorrectly advised by the agency’s counsel that the commission did not have the authority to require that the mechanism remain operable.  The mechanism of the clock was a significant aspect of the clock itself, over whose removal or alteration Landmarks had authority, and absent explicit limitation, that authority extended to the internal mechanism.

Save America’s Clocks v. City of New York, 2016 WL 1263373 (N.Y.Cty.Sup.Ct. March 31, 2016) (Attorneys: David P. Rubinstein, Michael Hiller, for Clocks; Jacqueline Hui, Zachary W. Carter, for City; Jeffrey L. Braun, for Developers) (Kotler, J.).

By:  Jesse Denno (Jesse is a full-time staff writer at the Center for NYC Law)

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