Christopher Rizzo
The Landmarks Preservation Commission (LPC) has jurisdiction over both buildings and landscape features on landmarks sites. But the Commission rarely directly regulates changes to landscape features. For routine landscaping changes and in urban contexts, the landscape features are rarely a concern. In other cases the landscape takes on central importance. This is especially true where there where the existing landscaping and natural land features figure prominently in the beauty and importance of the site. In some cases the open space of the landmark site may be as important as the building itself, such as in Douglaston, Queens and Fieldston, Bronx. The Commission and its sister agencies should play a larger role in protecting the landscapes associated with the landmarked structures by acknowledging the importance of the landscaping at designation and later when new tax lots or proposed developments come before the Commission.
Open Space, New Buildings and Subdivisions: The Commission does not now have published rules or policies regarding open space, landscaping and natural features. But on certain historic sites they are critically important. Consider the Saint Luke in the Fields in the Greenwich Village Historic District, which is distinguished as much by its simple Federal-style architecture as its garden setting that the designation report calls “a suburb early example of coherent community planning.” The designation report otherwise has little to say about the importance of the site’s open spaces, which are surely worthy of protection. The Commission should consider addressing this gap.
The issue becomes most acute with the subdivision of landmark tax lots where new development parcels are created from landmark sites. The Commission has no role in subdivisions of vacant tax lots. The Commission freely grants certificates of no effect for subdivisions of tax lots with buildings. Tax lot subdivisions are overseen by the Department of Finance. Where a building exists, DOB requires completion of form PW-1. DOB’s primary concern is not landmark status but rather in ensuring that new tax lots are zoning compliant. The problem is that tax lot subdivision is almost always a precursor to a new building application that will require more extensive the Commission review and it can be very hard to turn down such an application once the City has already approved the creation of the new tax lot.
Constitutional Implications. The Fifth Amendment of the U.S. Constitution has given rise to hundreds of cases regarding environmental and land-use laws that allegedly devalued property so much that a taking resulted. Few cases involve landmarks. From the open space perspective, the most significant decision comes from Washington D.C. In District Intown Properties v. District of Columbia the owner of a landmark apartment complex with extensive open space created nine new tax lots. When the city denied applications for new townhouses, the owner sued. The court found that the complex’ open space was a vital part of its historic character. It found that the city’s denial did not render the tax lots valueless. Moreover, the owner had owned the complex for decades and was well aware of the landmark regulation at the time it decided to create new tax lots. State courts have, however, sometimes come out the other way.
The Problem for NYC. Most designation reports for individual landmarks and historic districts focus on architectural qualities of the landmark rather than its setting, open space and natural features. This leaves owners and the Commission with limited guidance on what is appropriate for new construction. The problem is more acute for the purchaser of a vacant, zoning-compliant, landmark tax lot. The purchaser has every reason to believe that in working carefully with the Commission he can obtain approval for a new building. A flat denial by the Commission would easily give rise to a takings claim. Other special land-use regulations in NYC, like Special Natural Area District zoning, are similarly at risk. Subdivision and sale to a new owner could thus be an end run around the Landmarks Law.
A Solution. The City should respond in three ways.
First, new Commission designation reports must be clearer about how open space, scenic views and natural features contribute to the designation of a tax lot. Such designations are recorded with each tax lot, providing better notice that new construction is not presumptively permitted.
Second, under the rationale of District Intown, an applicant seeking approvals of tax lots he created should have no presumptive rights to develop newly created tax lots unless stringent constitutional thresholds are met (i.e., subdivide at your own risk).
Third, for routine tax lot subdivisions, the city should develop a joint agency policy on subdivisions that provides notice to future buyers that a new building may not be permitted when it would impair the protected features (both architectural and landscape) of the landmark site.
—Christopher Rizzo is a partner at Carter Ledyard & Milburn and co-director or the firm’s environmental and land-use practice group. His firm represents the Fieldston Property Owners Association, among other clients, where the issues raised in this commentary are a concern.