Landmarks’ John Weiss on Combating Demolition-by-Neglect

John Weiss has served as deputy counsel for the New York City Landmarks Preservation Commission since 2001. Weiss leads Landmarks’ efforts to protect landmarked structures from demolition-by-neglect, and each of his cases reveals a fascinating tale of New York City real estate.

After earning his undergraduate degree in political science and public policy from Hampshire College in Amherst, Massachusetts, Weiss was torn between studying law or architecture. He took time off while at Hampshire to work with the Washington, D.C. Public Defender Service and then for the Belchertown Planning Board in Massachusetts. Weiss also spent a summer in New York City working for the Municipal Art Society. He returned to MAS after graduating, where he helped form the Friends of the Upper East Side Historic Districts.

Following graduation from Columbia Law School, Weiss served for four years as an Assistant District Attorney in New York County. Weiss later practiced privately, but returned to the public sector as an assistant corporation counsel in the General Litigation Division of the City’s Law Department. He then joined Landmarks, where, alongside General Counsel Mark Silberman, he handles a wide range of legal, regulatory, and policy matters. Weiss also oversees the agency’s demolition-by-neglect lawsuits, which he described as “the ultimate preservation enforcement tool.”

Enforcement tools. The City’s administrative code requires that landmarked buildings must be kept in a state of “good repair.” Landmarks receives and investigates approximately 1,000 reports a year concerning the condition of landmarked buildings. If an inspection of a site reveals more than minor issues, Landmarks typically will issue a warning letter to a building owner outlining the problems and how to correct them. In addition to warning letters, Landmarks has the authority to issue notices of violation and stop work orders, which can result in fines.

In situations where a building has suffered severe neglect, or its structural stability has been compromised, Landmarks can initiate what is commonly known as a demolition-by-neglect lawsuit to force an owner to repair a building. Pursuing, or just threatening to pursue, a civil action has been an effective way to protect threatened buildings.

Working with owners prior to filing a lawsuit. When Landmarks becomes concerned that a building is potentially suffering from demolition-by-neglect, Weiss visits the site to photograph and evaluate the building’s condition. Assessing the site conditions can be difficult, and Weiss often must gain access to neighboring properties and rooftops to fully document the site. A building’s facade might appear to be in acceptable condition, but may conceal extensive damage to the building’s internal structure. Coordination with the Department of Building’s forensic engineers is essential to determining the true condition of a building, and Weiss is in daily contact with that agency.

After a site visit, Weiss contacts owners and reminds them of their legal obligations to keep their building in good repair and on occasion will provide them with a list of potential architects and contractors who have worked on landmarked buildings. Ideally, owners will voluntarily make repairs or agree to sell the property to someone who will make repairs.

Outreach challenges. Weiss pointed out that simply contacting an owner can be difficult. In one instance, it took Weiss four months to contact the owner of a rowhouse in the Hamilton Heights/Sugar Hill Historic District Extension in Manhattan. He scoured public records and used a private investigator before asking the Social Security Administration to forward a letter to the owner, who, as it turns out, had been living in a homeless shelter in Midtown Manhattan. Despite the challenges, Landmarks has never failed to track down the owner of a threatened property.

Sometimes a building owner’s best option is to sell the property because the owner cannot make the necessary repairs due to financial reasons or health problems. As Weiss explained, selling the property comes with its own set of problems. After discussions with Landmarks, the elderly owner of a rowhouse at 437 Waverly Avenue in Brooklyn’s Clinton Hill Historic District decided to sell the building rather than pay for its repair. The owner’s parents had purchased the townhouse in the 1920s, and she had been born in the building. She inherited the building after her parents died, but, prior to selling the building she discovered that she did not possess legal title. The owner, with the help of her neighbor and a pro bono attorney, successfully established ownership through an adverse possession lawsuit. Weiss participated in the adverse possession case and, at a courtroom auction, made sure potential bidders knew they would be responsible for repairing the building.

Litigation as a last resort. Landmarks will work with an owner until it is clear that a demolition-by-neglect lawsuit is the only option left. “Time is not on our side,” says Weiss, noting that he will file a demolition-by-neglect lawsuit more quickly against an unresponsive owner. The form of relief sought by Landmarks is a judicial order to compel the owner to make repairs, and in some instances, to pay fines of up to $5,000 per day. The attorneys at the Administrative Law Division of the City’s Law Department play an instrumental role in pursuing these cases. Resolution prior to trial is the most common result, with the owner agreeing in a stipulation to a detailed scope of work and work schedule.

The threat of litigation can have different impacts on owners. As an example, Weiss noted a pair of separately owned, adjacent rowhouses at 243 and 245 Lenox Avenue in the Mount Morris Park Historic District. The owner of 245 Lenox Avenue decided to restore the building before Landmarks sued. The building has been fully restored and is now occupied as a four-family home. In contrast, it took an appearance before an unsympathetic judge to convince the owner of 243 Lenox Avenue to sign a stipulation agreeing to repair his property. While the owner has made extensive repairs, the building’s facade still needs to be completely restored and remains unoccupied.

Notable cases. Notable demolition-by-neglect cases include the Skidmore House, the Windermere Apartments, and the Corn Exchange Bank Building. The Skidmore House at 37 East 4th Street in Manhattan’s East Village is still the only demolition-by-neglect case to go to trial. Weiss explained that the owner owned a substantial amount of real estate and had an in-house architect, yet had allowed the building’s roof to collapse. New York State Supreme Court Justice Walter B. Tolub deferred to Landmarks’ determination that the owner had failed to keep the building in good repair, and ordered the owner to permanently repair the building’s interior and exterior. (See the renovated building here).

Landmarks’ enforcement against the owner of the dilapidated Windermere Apartments on West 57th Street was also newsworthy. The former Tokyo-based owner refused to repair and maintain the building. Landmarks initiated a lawsuit, which required the agency to consult with the State Department to investigate how to properly serve notice to someone in Japan. In May 2009 the owner agreed to pay a record $1.1 million in fines. The owner also agreed to sell the Windermere, and Landmarks secured a commitment from the new owner to restore the building.

In the case of the Corn Exchange Bank Building, on East 125^th Street in Harlem, the owner had filed for bankruptcy, creating delays and leading to additional deterioration of the building. The City’s Economic Development Corporation was able to regain control of the Corn Exchange, and identify a new owner. Finally, on April 24, 2012, Landmarks heard the new owner’s rehabilitation plan for the Corn Exchange. (See a rendering of the proposal here).

Evolution of enforcement at Landmarks. Weiss emphasized that an overwhelming majority of the approximately 29,000 buildings under Landmarks’ jurisdiction are properly maintained. Landmarks has only filed ten demolition-by-neglect lawsuits, with 75 to 80 buildings currently involved in the demolition-by-neglect process. Prior to 2000, Landmarks had filed only one demolition-by-neglect lawsuit. That case involved a run-down rowhouse at 306 State Street in Brooklyn, and an angry owner who reportedly placed a curse on Landmarks’ general counsel. Landmarks now relies on the pressure exerted by demolition-by-neglect actions with more regularity. Weiss said that this reflects the agency’s maturation. When Landmarks was formed in 1965, the priority was to identify and designate landmarks. The agency eventually shifted its focus on regulating landmarked properties. As Weiss pointed out, Landmarks’ administrative enforcement system, i.e., the authority to issue warning letters and civil fines, was only established in 1998, in large part due to the work of then-Deputy Counsel Mark Silberman. Prior to that, Landmarks was limited to issuing “old law” notices of violation or going before the criminal court to enforce compliance.

— Frank St. Jacques