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The First Department Holds that a Private Owner of a Historic Mechanical Clock That Was Designated as an Interior Landmark Can be Required to Operate and Permit Public Access to the Clock

December 18, 2017 Posted in Firm News

In Save America’s Clocks v. City of New York, 2017 Slip Op 08457 (1st Dep’t Nov. 30, 2017), the First Department affirmed the lower court’s decision to annul a Certificate of Appropriateness (COA) issued by the New York City Landmarks Preservation Commission (LPC). The COA would have permitted: (1) replacement of the mechanical mechanism of a historic clock (that along with the tower in which it was located) was designated as an interior landmark under NYC’s Landmarks Law, with an electric system; and (2) conversion of the interior of the clocktower into a private residence.

In 1968 the City of New York acquired the building located at 346 Broadway in Manhattan. The building was constructed in the late 19th century for New York Life Insurance Company. A clocktower on the building’s western end is a significant feature of the building. The clocktower houses one of the largest mechanical clocks remaining in the world. In 1989 the clock and clocktower, including the clock’s machinery, were designated as an interior landmark by the LPC based on a finding that the clocktower and its machinery, among other things, had special historic and aesthetic interest and value, and were open and accessible to the public.

In 2013 the City sold the building to a private owner subject to, among other things, the interior landmark designation of the clock and clocktower. The majority’s decision reports that the new owner planned to repurpose the building as a mixed-use center. The owner applied to the LPC for a COA to “refurbish the building's exterior and interior and to modify some of the landmarked interior spaces. In particular, the application requested permission to convert the clocktower into a triplex private apartment, to disconnect the clock from its mechanism, and to electrify the clock.” Save Am.'s Clocks, Inc. v City of New York, 2017 NY Slip Op 08457 (1st Dept Nov. 30, 2017).

During hearings on the COA application, the LPC’s counsel advised the commission that it could not require the building’s owner to operate the clock’s mechanical system or allow public access to the clock’s mechanism. According to the majority opinion, the LPC reluctantly approved the COA to electrify and close public access to the clock based on its counsel’s advice. Petitioners challenged the issuance of the COA, and the Supreme Court, New York County granted the petition and annulled the COA.

 In a 3-2 decision the First Department affirmed the lower court, finding that the LPC’s issuance of the COA was both affected by an error of law and irrational. The majority held that the LPC’s counsel’s interpretation of the City’s Landmarks Law was erroneous and that the commission could require the building’s owner to operate the mechanical clock and allow some form of public access to the clocktower. The majority relied on a careful reading and interpretation of the text and intent of the City’s Landmarks Law, and the specific designation of the clock and its machinery, to support its holding.

 The two-Justice dissent took issue with almost every aspect of the majority’s decision and would have upheld the issuance of the COA. Because the decision was split 3-2 on a question of law, the Respondents may appeal as of right to the Court of Appeals. Stay tuned…

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