Court Rules Permit to Disconnect Historic Clock was Irrationally Issued

346 Broadway. Image Credit: Brett.

Landmarks permit that would have seen designated interior converted to inaccessible private residence, and historic clock mechanism disconnected, is ruled to have been issued irrationally and influenced by erroneous legal counsel. The Landmark Preservation Commission designed spaces in the former New York Life Insurance Building, located at 346 Broadway, constructed in 1894 to 1898, as an interior City landmark in 1987. The designation included the 13th floor clock tower, which held the four glass clock faces and the clock mechanism, driven by a 1000-pound weight, with a 5,000-pound bell above the mechanism. At the time of designation, the property was owned by the City, and the clock tower was occupied by a gallery, artist studios, and a public service radio station.

It was one of the only mechanical clocks in the City, and one of the largest mechanical clocks in the world. It had fallen into disrepair by 1980, and two City workers restored the clock to working order on their own time, and wound the clock each week on a volunteer basis. In 1992, Mayor Dinkins appointed one of the men, Marvin Schneider as the City’s “Clock Master.” Schneider continued to maintain the clock, and led weekly tours open to the public.

In 2013, Civic Center Community Group LLC purchased the building from the City, intending to re-use and redevelop the building. The new owner prevented Schneider from accessing the tower and servicing the clock mechanism, and ended his practice of giving tours to the public.

The owners applied to Landmarks for a certificate of appropriateness that, among other work, would convert the clock tower to private residences, and disconnect the clock from its historical mechanism and convert it to electronic operation. The developers said the purpose of altering the clock mechanism for electronic was to avoid the necessity of anyone entering private living space to wind or maintain the mechanism.

At a public hearing on the applications, Commissioners expressed concern about the loss of public access to the clock tower and the alterations to the clock’s operation, and were advised by Landmark’s counsel, Mark Silberman, that the agency did not have the authority to require that designated interiors remain open to the public, or the authority to mandate the continued mechanical function of the clock.

Seven Commissioners expressed their desire that the clock should remain mechanized, but deferred to Counsel’s advice and voted to approve the C of A.  Ultimately, only Commissioner Adi Shamir-Baron voted against approving the application. It was the first time an interior had been allowed to be converted into a private, publicly inaccessible space.

In the permit, the owners were required to record a restrictive declaration that mandated, among other things, the permanent operation of the external clock faces, that Landmarks would be able to periodically inspect the interiors, even if converted to private residences, and that the main banking area not be converted to residential use and remain accessible to the public.

A coalition of individual and preservationist organizations filed an article 78 petition challenging the issuance of the permit.

New York County Supreme Court Justice Lynn R Kotler annulled the C of A as it applied to the clock and the clock tower. Kotler found that the agency acted irrationally in granting a permit that would render the landmarked interior of the clock tower inaccessible, as public accessibility was a defining characteristic of an interior landmark. To authorize the elimination of public access, Landmarks would need to take the step of de-designating the property.

On appeal, the First Department upheld the lower court’s decision, ruling that Landmark’s decision was irrational, and influenced by an error in law. The First Department found, as did the lower court, that Landmarks possessed authority to require that that the clock tower be accessible to the public and that the mechanical operation of the clock be retained and maintained.

The Court noted that that when the LLC purchased the building, the deed stated that the property was subject to “covenants, conditions, easements, leases and agreements of record,” including the landmark designation specifically.

The Chair and two commissioners had expressed a preference that that the agency require some level of public access to the clock tower, and the Chair and seven commissioners clearly stated their desire that the clock’s mechanical operation be maintained. Had commissioners voted their preference, the permit would not have been approved. However, they relied on erroneous legal counsel that they did not possess the authority to require either condition.

The court determined that the clock’s mechanism, identified in the designation report as representing an element of the City’s’ economic and cultural history and contributing to the building’s historical value, fell under the definition of “interior architectural feature” in the landmarks law, whose use and alteration was subject to Landmarks’ regulation. The mechanism’s uniqueness and historic interest exemplified the type of object whose perpetuation and protection lay behind the intent of the Landmarks Law. To detach the clock from its analog mechanism when unnecessary would place the mechanism at risk and potentially cause it irreparable damage.

Preserving public access to landmarked interiors further the law’s statutory purpose in fostering civic pride, educating the citizenry, and enhancing tourism.  The court found that the Landmarks Law not only makes public accessibility a prerequisite for an interior designation, but also contemplates that landmarked space shall remain open to the public in the future. The law charges Landmarks, when considering a permit application, to take into account how proposed work would be consistent with the purposes of the Landmarks Law.  To transform the clock tower into a private residence violated the interior landmark designation.

The court rejected the owner’s assertion that demanding that the clock tower be publicly accessible constituted a taking, because the owners had purchased the property under a deed making explicit that the property was subject to landmark designation. The owners had tacitly recognized that fact by acceding to a restrictive declaration that he landmarked hall could not be converted to residential use.

No decision has been made yet whether the City or the property owner will appeal.

Save America’s Clocks v. City of New York, 2017 N.Y. Slip Op. 08457 (1st Dep’t  Nov. 3, 2017) (Attorneys: Michael S. Hiller, Jason E. Zakai, for Clocks; Diana Lawless, Devin Slack., Zachary W. Carter, for City; Jeffrey L. Braun, Catherine L. Hoge, for LLC).

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