History in the Making: The New York City Landmarks Law at 50

Speakers spoke of the different priorities of City government and other stakeholders, examined preservation strategies of municipalities nationwide, and considered changes in the legal landscape that could affect landmarking. On October 26, 2015, , Meenakshi Srinivasan, Chair of the Landmarks Preservation Commission, and Jerold Kayden, Professor at the Harvard University Graduate School of Design, co-hosted an event titled “History in the Making: The New York City Landmarks Law at 50.” The event held at the New York City Bar Association consisted of multiple addresses and panels intended to provoke and challenge common assumptions and perceptions regarding historic preservation as the City’s landmarks law enters the second half of its first century.

Meenakshi Srinivasan opened the event by stating that, while the public benefits of landmarking and its enhancement of the City quality of life had gained wide acceptance, it is time to “think critically about the law’s history and its application over the next five decades.” Deputy Mayor for Housing and Economic Development Alicia Glen said that without the landmarks law, “market dynamics” would have shaped the City in a very different way over the past 50 years. She argued, however, that landmarking should not “impede change or innovation.” Glen said the De Blasio administration aimed to preserve and promote neighborhoods while “embracing and catalyzing growth.” She stated that Landmarks under De Blasio is “no longer its own silo,” but part of “wider planning efforts and economic objectives.”

Jerold Kayden stated that, at 50 years old, the landmarks law was now “middle aged,” a time of “stock-taking and soul-searching.” Kayden said the landmarks law was “revolutionary” at the time of its institution, supplementing or rejecting notions of zoning, previously the only local form of land use regulation. At the same time, it was a “blunt instrument,” that prioritized one public interest regarding the built environment above all others. He posited that the landmarks law is not as narrow as critics characterize it, but nonetheless said that questions should be entertained as to whether it was successfully balancing all interests.

50 Years of Accomplishments

Landmarks’ Executive Director Sarah Carroll gave a presentation on the Commission’s accomplishments over the past 50 years, in their historical context by decade. In its first ten years of existence, 10,000 properties fell under Landmarks jurisdiction, including the first individual landmark, the Wyckoff House, and the first Historic District, in Brooklyn Heights. In its first ten years, the Commission oversaw the expansion of the Metropolitan Museum of Art, and successfully defeated it first legal challenges. The SoHo Historic District, designated in 1973, was the first district recognized for its commercial origins and architecture. The first designation of an interior landmark occurred in 1974, with the designation of part of the main branch of the New York Public Library.

In its second decade, while the City was facing a fiscal crisis and social turmoil, Landmarks saw the restoration of the Statue of Liberty and the Supreme Court’s recognition of landmarking as a legitimate public purpose. In the period between 1985 and 1994, Landmarks approved the construction of an addition to the Morgan Library, the designation of the Ladies’ Mile Historic District, and 69,000 permit applications. In 1993, the Commission designated its first archaeological site, the African Burial Ground. In the following decade, Landmarks approved the construction of the Hearst Tower and the addition of the Rose Center to the American Museum of Natural History, among other significant projects. In the last ten years, the number of structures overseen by Landmarks has grown to 10,600, and Landmarks approved the individual landmark status of the Stonewall Inn, the first landmark identified for its role in LGBT history and culture.

Carroll said the Commission strives to “embrace strategies that respond to the site and its history” when overseeing development. She said the challenges of resiliency and sustainability were issues Landmarks had begun to confront, and much work approved by Landmarks in recent years had LEED certification. She stated that the Commission needed to look further ahead to account for changing demographics in the City, issues of equality, and climate change. She said the Commission hoped to not just continue to shape the growth of historic buildings and neighborhoods, but also hoped to examine how such practices are viewed throughout the state and the nation.

Preservation Questions for the Future

In a brief address titled “Landmarks and Public Policy,” Meenakshi Srinivasan stated that, during the past 50 years, preservation had become an integral part of public policy. She wondered if the writers of the law envisioned Landmarks’ role in the City today, with thousands of buildings under its oversight, including many of the most significant commercial areas of Manhattan. She posed the question as to whether it was time to stop viewing preservation “through its own independent lens, but as a “critical planning objective.”

She identified population growth, affordable housing, transportation, inequality environmental concerns, and rising sea levels as issues policy makers needed to address as they look to the future. She addressed the “uneasy tension” between planning for the City’s future and preservation, which she found to be false dichotomy, and said both objectives can be incorporated into a more “nuanced, democratic, inclusive and participatory process,” than the top-down planning of earlier generations. She said the fear that “preservation may lose out to social goals” was an antiquated viewpoint, and that the past 50 years had demonstrated that landmarked districts could function as the most desirable neighborhoods and thriving commercial hubs.

Srinivasan posed a series of questions for conference attendees to consider. With preservation having been established as a public good, and simultaneous evolution of the planning process, was it time to consider a new model that integrated both functions? She pointed out that with every landmark or district designated, the more certificates of appropriateness applications Landmarks had to consider, and asked whether this regulatory responsibility was appropriate for an all-volunteer Commission. She asked if there was tension between what the general populace wanted and expected from preservation and what was desired by preservation advocates, and, if so, was the law responsible for the disparity? She inquired as to whether all designated structures should be treated alike, and if the law adequately accounted for the diversity of building types and styles in the City, with varying levels of significance. She asked whether people were interested in preserving the scale and predictability of the buildings in their neighborhoods, or the fabric of historic architecture. She finally asked if the City’s “incremental approach” to preservations was the best one, or if there exist strategies that could be implemented to create a long-term plan.

Impact of Recent First Amendment Decisions on Preservation

Cardozo School of Law’s Marci Hamilton discussed the impact of Supreme Court decisions and Congressional legislation related to First Amendment issues in recent years on land use and local preservation statutes. When Congress passed the Religious Freedom Restoration Act in 1993, it mandated that municipalities may burden religious institutions in the pursuit of substantial government interests by the “least restrictive means.” Hamilton called this “a radical standard,” and said the law and Roberts Court used the establishment clause toward “narrowing the separation of church and state.”

After the Supreme Court overturned RFRA in its applicability to state and local laws, Congress passed the Religious Land Use and Institutionalized Persons Act in 2000, providing a special privilege to religious institutions. Municipalities must meet the difficult standard of “compelling interest” to enforce laws that burden houses of worship. Hamilton said that aesthetic considerations and historic preservation, almost certainly cannot meet the standard. She said the extreme standard has derailed normal negotiation processes balancing the interests of different local stakeholders.

RLUIPA upended long-held deference to local land-use decision-making, rendering local priorities regarding land use like size and height, aesthetics, traffic, and use subservient to land development by religious institutions. Hamilton called this “an erosion of land us principles” and ultimately leading toward “the end of zoning of religious entities.” If there is any discretion in the decisions of local land use authorities, as there is in almost all zoning determinations, then RLUIPA becomes the governing standard. In Pomona, New York, a developer purchases 100 acres zoned for single family dwellings, and proposes to build multi-family housing associated with a rabbinical college. The developer did not file any applications for planned religious educational or residential use, but instead went directly to federal court, which found that the owners did not have to follow the procedures under RLUIPA, and that upholding community character was not a compelling interest. Until recently an extreme point of view, the idea that zoning does not apply to religious institutions is now becoming a “standard argument.”

Hamilton said that under the First Amendment, as determined by the Second Circuit, there is no special religious protection afforded to religious persons and institutions when they are subject to a law of uniform applicability, such as the landmarks law. “You don’t get free exercise rights on laws that are neutral and generally applicable,” said Hamilton, giving the example that one cannot avoid a ticket if caught speeding while on the way to church.

Hamilton said that under the First Amendment, as determined by the second circuit, a law that applies to everybody equally, like the landmarks law, there is no special religious protection, “you don’t get free exercise rights on laws that are that are neutral and generally applicable.” Prior to RFRA, courts had found that neutrality of the First Amendment prevented any special protection for religious institutions; therefore they had to abide by the same land use provisions as all other property owners.

2014’s Hobby Lobby decision will increase the difficulties of enforcing land use law as applied to religious institutions. Hamilton said that, after the decision, “the doors blew off,” and any “rational reading” of RFRA or RLUIPA has been rendered irrelevant. In the decision, the Supreme Court determined “the least restrictive means”, as applied to religious institutions, means “the least restrictive thing we can imagine, whether politically feasible or not.” A religious entity’s interest is now the primary interest protected, and the interests of the community or other third parties are now secondary. She said soon it will be difficult for any municipality, “even New York City,” to enforce laws on religious landowners. Hamilton holds that RLUIPA is unconstitutional but the financial burden of legal fees prevents municipalities from challenging the law, and instead seeking settlements with religious institutions, or allowing them to contravene local laws unimpeded.

Approaches to Preservation Across the Country

Landmarks Counsel Mark Silberman hosted a panel on approaches to historic preservation around the country. Silberman stated that he hoped it would be useful, as the Commission looked forward, to see the methods, ideas, and efforts utilized by other cities in considering how New York could improve its own practices. Ellen Lipsey, former Executive Director of the Boston Landmarks Commission, discussed the two tiers of neighborhood designation, Landmark Districts and Architectural Conservation Areas which have different guidelines and restrictions. Work in Boston’s historic districts is not overseen and authorized by the citywide commission, but by individual local Historic District Commissions. Georgetown Law Professor J. Peter Byrne discussed the process in Washington D.C. where twenty percent of all buildings are protected under the Historic Preservation Office. In Washington, an agent of the Mayor can decide when alteration or demolition is appropriate in advancing compelling City interests of “special merit,” in its architecture, use, or public benefits. Job creation or tax revenue cannot be taken into account when determining whether a project meets the standard. Byrne said the “public and transparent” process was able to strike a successful interest between competing values, had the advantage of being “more legal than political.”

The National Trust for Historic Preservation’s William Cook addressed preservation work in Los Angeles, currently undertaking an extensive survey of the entire city’s historic resources though a partnership with the Getty Foundation. Los Angeles takes an expansive view towards structures or objects significant to its cultural heritage, and its designation commission includes folklorists and cultural anthropologists. Los Angeles has also been aggressive in increasing the amount of affordable housing through adaptive reuse.

Detroit’s Planning Director, Maurice Cox, explained that African American communities tend to view preservation not as the protection of historic architecture or the built environment, but sought to protect buildings as memories of the stories of people and neighborhoods. Cox said that in Detroit, which possesses thousands of vacant structures that are rapidly being demolished; the struggle was to identify items for preservation and to seek strategies for their adaptive reuse. Pointing to demolition of the headquarters of Motown Records, he said that we lose the capacity to tell the stories of a City when we lose the built artifacts.

Improving the Landmark Law

At the day’s final discussion, Kayden challenged panelists to conceive of concrete changes that could improve the City’s landmarks law. Jed Walentis of Two Trees Management attested that landmarking had severely inhibited the City’s development to its detriment, that “distorts natural economics,” and suggested that designation should elapse after a certain amount of time, and the significance of the property or district considered anew. Architect Rick Cook opined that language regarding environmental impact should be memorialized in the landmarks law. Attorney Paul Selver said the law as it stands today is “pretty rational,” but argued that it lacked “predictability” for owners and developers, and that every building considered as contributing to a historic district was not meritorious of the same level of protection. Former Landmarks Chairman and Municipal Art Society President Kent Barwick asserted that it was not the landmarks law that required amendment, but the totality of agencies governing land use in the City. The Preservation League of New York State’s Anne Van Ingen decried the “woefully understaffed” commission, and said it needed to do a better job of selling the benefits of designation

Asked to respond, Srinivasan emphasized that Landmarks does not “freeze” development, but ensures the aesthetic compatibility of new buildings and additions in historic districts. She said “we try to be ambassadors for our cause,” and was working to “humanize” the commission and its processes, by, among other thing, publishing a monthly newsletter.”

LPC, Association of the Bar of the City of New York: History in the Making: The New York City Landmarks Law at 50 (Oct. 26, 2015).

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