Court of Appeals Allows Historic Clock to be Closed to the Public and Converted

346 Broadway. Image Credit: Brett.

Landmarks acted within its authority when it approved the LLC’s certificate of appropriateness. On March 28, 2019, the New York Court of Appeals ruled that the Certificate of Appropriateness granted the Landmarks Preservation Commission for 346 Broadway in 2014 was proper, reversing two lower courts’ decision. In 1987, the Landmarks Preservation Commission designated 346 Broadway as an interior landmark. The designation included the building’s banking hall and the 13^th floor clock tower, which houses a mechanical clock. At the time of designation, the City owned the building and the clock tower was opened to the public for weekly tours.

In 2013, the City sold the building to Civic Center Community Group Broadway, LLC who planned to redevelop the building. The LLC applied to Landmarks for a Certificate of Appropriateness to convert the clock tower to private luxury apartments and to convert the clock’s mechanism to electric. The clock tower would be closed to the public to ensure the residents’ privacy. Landmarks approved the certificate in December 2014.

In response, Save America’s Clocks, a historic clock preservation organization, filed an Article 78 petition challenging Landmarks’ decision. The Supreme Court agreed with the organization, holding that Landmarks’ decision was irrational and influenced by an error in law. The Appellate Division, First Department affirmed the decision. For CityLand’s prior coverage of the lower courts’ decisions, click here and here. The LLC appealed the lower courts’ decision.

The Court of Appeals reversed the lower courts’ decisions and held that Landmarks acted within their authority to grant the certificate. Judge Michael J. Garcia held that the Commission’s decisions to allow the LLC to close the clock’s public access and convert the clock to electric were not irrational and held that Landmarks made its determination following an extensive deliberate process. He reasoned that the decision to close the clock tower to the public is not inconsistent with the statutory definition of an interior landmark. Public access is only a threshold condition for an initial Landmarks designation and is not necessary for the future uses of the building. Justice Garcia also stated that the decision to allow the clock to electrify assures the clock’s future continued maintenance and the clock’s significant features will be retained.

Justice Garcia also held that Landmarks’ decision was not affected by an error of law. New York City Landmarks Law gives Landmarks broad discretion to determine what is appropriate and gives the Commission the authority to grant or deny a Certificate of Appropriateness after it evaluates the proposed work. Justice Garcia stated that Landmarks properly exercised that authority when it approved 346 Broadway’s certificate.

Judge Jenny Rivera in the dissent stated that “transforming an interior landmark into a private residence such that it is completely closed off from the public, annuls its designation and is inconsistent with the purpose of the Landmarks Preservation Law.”

CityLand reached out to Civic Center Community Group Broadway, LLC; however, they did not have a comment on the decision.

On behalf of the Landmarks Commission, Law Department Press Secretary Nicholas Paolucci stated that they were “pleased the Court found that the Commission’s decision to approve this comprehensive project to restore and revitalize the building was appropriate and lawful.”

Save America’s Clocks Founder and President Tom Bernardin stated that the organization is “very disappointed at the misguided ruling of the [Court of Appeals]. New York is losing an important cultural and engineering wonder. It would appear that the Landmarks Preservation Commission has lost vision of its mission. We wonder what the ruling would have been forty years ago when preservation was held in higher regard.”

Historic Districts Council also participated in the lawsuit as co-respondents. Historic Districts Council Executive Director Simeon Bankoff stated that HDC was “very disappointed” with the Court of Appeals decision.

“We were dismayed by LPC’s approval. I think the judges agreed with us that LPC’s counsel was giving not perfect advice. Some of the commissioners in the transcript were unclear as to their responsibilities. We felt that this was a bad judgment call on the part of the Commission,” said Executive Director Bankoff.

He stated that Landmarks should not have approved the application because “it was a de facto rescission of the interior designation.” He explained that the Commission essentially approved the removal of the landmarks designation when they approved the proposals for the clock.

“It is okay to apply a different use for an interior landmark space in the future but in this case, they are basically destroying 95 percent of the landmark. That’s not preservation. It cuts to the existential question of “what is preservation?” Landmark designation is supposed to be for all time. It’s not for 25 years and then we are going to change it and destroy everything. That is a very disturbing act in the part of the LPC,” said Executive Director Bankoff.

He also found it disappointing that Landmarks did not wish to have the power to enforce public access to the interior landmark. He felt that it was something in their power and it would have been a useful tool but it seemed like they did not want to deal with it. He noted that the City only has 120 interior landmarks and most of them are deeply public.

This marks the end of judicial remedies unless the parties pursue federal judicial review by the United States Supreme Court which may prove to be difficult.

Save America’s Clocks v. City of New York, 2019 Slip. Op. 02385 (N.Y. Mar. 28, 2019) (Attorneys: Diana Lawless for City; James P. Rouhandeh for LLC; Michael S. Hiller for Clocks).

By: May Vutrapongvatana (May is a CityLaw intern, and a New York Law School student, Class of 2019).