Mark Silberman
Hobbled by a bad back and recently returned from vacation, the Landmarks Preservation Commission’s General Counsel Mark Silberman sat down with CityLand to talk about his role at the Commission and Landmarks’ role in the City. He brings a perspective on the broader role of historic preservation nationally and in our culture.
A young environmentalist. Raised in Illinois and a graduate of the University of California at Santa Cruz, Silberman began his career in government and advocacy as a lobbyist in Washington for environmental groups, including Friends of the Earth, an offshoot of the Sierra Club and the first grassroots international environmental organization. Silberman worked on amending the Safe Drinking Water Act to protect groundwater, pesticide reform, and hazardous waste issues.
Silberman decided he could be more effective with a law degree. He attended Hofstra University’s law school, choosing this institution largely for the opportunity to work with environmental lawyer and former Parks Commissioner William Ginsberg. After graduation, Silberman worked at Paul, Weiss, Rifkind, Wharton & Garrison LLP’s recently created environmental law group, where, he estimates, he spent around 30 percent of his time working on pro bono cases. Among those cases, Silberman worked with two colleagues representing the Natural Resources Defense Council and the West Harlem Environmental Action Coalition over the operation of the North River Wastewater Treatment Plant in Harlem, eventually winning a million dollar settlement with the City.
Career at Landmarks. Silberman was brought to Landmarks in 1995 by then- Chair Jennifer Raab. Although he functioned as a de facto deputy counsel, he was hired under the non-legal title Director of Enforcement due to a City hiring freeze. Raab, who had as a priority the revamping of the agency’s enforcement capabilities, recruited him to Landmarks for his experience as a lobbyist and in drafting legislation. At that time, Landmarks’ only means of penalizing illegal work was through criminal proceedings, which the Law Department and judges were reluctant to enforce, or by refusing to issue permits for buildings with illegal work, known as the “hostage policy.” Silberman worked with Kenneth Fisher, who was then chair of Council’s Landmarks, Public Siting & Maritime Uses Subcommittee, and preservationist groups to draft an amendment to the Landmarks Law allowing for administrative tribunals to adjudicate violations and for the assessment of civil penalties.
Silberman says that as general counsel for a small agency he can focus on policy, litigation, and planning rather than on procurement and personnel issues. In the line of duty, he drafts rules, including specific rules for individual historic districts. He also coordinated the redesign and updating of the Guide to New York City Landmarks and was involved in the recent exhibition Context/ Contrast, which examined new buildings in historic districts.
Enforcement and outreach. Silberman emphasizes that the application of the Landmarks Law must be sufficiently flexible so as not to deter people from living in historic districts. The Commission strives to be “a friendly organization,” and Silberman says the “political reality of preservation” is that Landmarks needs to provide readily accessible staff and require simple paperwork with minimal filing fees.
Silberman, who brought the agency’s first demolition-by-neglect lawsuit, credits his colleague, Deputy Counsel John Weiss, with having revolutionized the handling of these types of cases. Silberman says that Landmarks extensively reaches out to property owners before going to litigation. The agency has learned that early intervention is the key. The Corn Exchange Bank Building, located at 81 East 125th Street in East Harlem, had been vacant for decades and suffered a fire. The City then leased the building to a non-profit and Landmarks issued permits to restore the building, but the group did not maintain the structure and Buildings was forced to order its partial demolition for safety reasons. Intervening earlier and requiring the city and/or the nonprofit to replace the building’s roof might have averted the need to demolish a portion of the building. He says the prominent demolition-by-neglect lawsuits are the exception and that in the majority of cases “people fix the problem, and it goes away.”
On challenges to the Landmarks Law. In Citizens Emergency Committee v. Tierney, a community group sued Landmarks in an attempt to force the Commission to consider all public requests for evaluation within 120 days of their submission. Landmarks won the lawsuit on appeal, with the court ruling that the agency had broad discretion in carrying out its mission. A group of City Council members, however, recently introduced a bill which would require a Landmarks committee to review every landmark proposal with 120 days and “promptly” report their determination to the Commission.
Although he does not take a stance on the proposed bill, Silberman says that Landmarks is an expert agency and is accorded a great deal of discretion by law. He believes the discretion granted in the Landmarks Law was intentional and that the current procedures best fit the practical reality of the volunteer Commission. He points out that at one time the Commissioners only had one public hearing a month, but now meet twice, in addition to having one public meeting each month. It would be infeasible to involve them in every level of the agency’s decision-making process. Silberman notes that requests from the public are only one example of the discretionary nature of the Commission, citing staff surveys of potential districts and buildings and the delineation of historic district boundaries.
Silberman argues persuasively that if preservation is going to be accepted by the larger community, Landmarks must be pragmatic and the law “should not be a mechanistically applied.” For example, it should allow owners to build contemporary additions and be open to new materials and approaches. Silberman believes that designation is widely considered to be desirable in the City partially because of Landmarks’ flexibility. — Jesse Denno