In response to the recent Appellate Hearing

A five-justice panel of the Appellate Court, First Division heard oral arguments at the landmarked courthouse on Madison Square on Thursday in the city’s and developer’s appeal of our victory in the 346 Broadway lawsuit. The suit, brought by a coalition consisting of Save America’s Clocks, Historic Districts Council, TriBeCa Trust, and several individuals, seeks to preserve the historic, landmarked clock in the tower of 346 Broadway and the public’s access to it. A large group of plaintiffs was present, including several members of Save America’s Clocks. There was a great deal of questioning by the justices, who seemed very engaged with the issues.

The city’s attorney had two main arguments: 1) that the Landmarks Law does not give the Landmarks Commission the power to prevent the conversion of the landmarked clock tower rooms into a private apartment, and 2) that the Commission does not have the power to require that the clock continue to operate mechanically, and therefore that its approval of the partial dismantling and electrification of the landmark clock was not arbitrary and capricious. The developer’s attorney’s focus was that if the Commission did act to prevent conversion of the space into a private apartment, that would be an unconstitutional physical taking of the property. [Unlike the question of whether landmark designation amounts to a regulatory taking of a property, which was settled in favor of the city’s power to designate landmarks by the U.S. Supreme Court in the Grand Central case, the concept of a physical taking rests on the fundamental right of a property owner to physically exclude people from his property.] Our attorney, Michael Hiller, brilliantly demolished these arguments.

In answer to the first claim, Hiller pointed out that the Commission’s own Certificate of Appropriateness for this project requires that a restrictive declaration be entered into guaranteeing that a different landmarked space inside the building remain open to the public and not converted to residential use.  How can the Commission claim, he asked, that it doesn’t have the power to require this in one landmarked part of the building while at the same time requiring it in another part? One of the justices helpfully asked how the public purposes and benefits of preservation contained in the Landmarks Law could be realized if the landmark is hidden from the public. Would it be a “secret landmark”?

In response to the argument that the Commission cannot mandate that the clock continue to operate mechanically, Hiller noted that the Commission’s own designation report specifically calls out the untouched condition and original operation of the clock as being what make it so significant and therefore worthy of designation; to allow the alterations proposed when there is no compelling reason to do so is almost the definition of arbitrary and capricious.

Finally, in response to the developer’s “taking” argument, Hiller noted that in this case the developer bought a building that was subject to the landmark designations, easements, and other restrictions when purchased. The developer cannot claim the city is taking a property right the developer never had. [The developer’s attorney brought up the U.S. Supreme Court’s “Nollan Case.” The owner of a beachfront house in California asked for a permit to build an addition. The state, which had wanted to create an easement on the beach so the public could cross the beach in front of this property, agreed to issue a permit for the addition contingent upon the owner’s agreeing to the easement. The owner sued and won, with the court saying that the easement would amount to a physical taking, as it had no direct relationship to the proposed addition. Hiller pointed out in his written documents (he didn’t have the opportunity to respond to this in court) that the Supreme Court also said in that case that, if the addition would have blocked views of the beach by the public, an easement could have been required to allow for maintenance of the public views, even to the extent of allowing the public access to the immediate grounds of the house. This hypothetical case is exactly analogous to our case, in that the private owner wants to take an action that would prevent access by the public to a designated landmark, and requiring that access to continue would therefore NOT constitute a physical taking, according to the Supreme Court.]

A final argument that the developer has made is his claim of a lack of historical access by the public to the clock tower and the physical difficulty of reaching it, having to walk through almost the entire length of the building to get to it. Hiller noted the ample evidence that the tower has been open to the public going back as far as 1901, when it was listed in a guidebook to the city as something to see, and for the past 30 years when it was used as a public art gallery and weekly tours were given of the clock mechanism by the city’s clock master, Marvin Schneider, who, Mr. Hiller could happily point out to the justices, was sitting in the gallery along with his assistant Forest Markowitz. He then pointed out that the plan the developer’s attorney was using to show the circuitous route was based on the old plan of the building. He pulled out the new plan for the building, now under construction, which includes stair and elevator access within 13 feet of the clock tower rooms!

Our attorney is optimistic. One justice (the chief justice, unfortunately) seemed opposed to us; two seemed in favor; and two were relatively quiet. The two justices who seemed most familiar with the facts of our case seemed most on our side. If the decision is 3-2 the losing side can automatically appeal to the NY State Court of Appeals; if the decision is 4-1 or 5-0 an appeal can occur only with special dispensation. A decision could be handed down in 6 weeks, but more likely 3 months, and possibly longer.


Judge Hands Victory to Protectors of

Tribeca's 1897 Landmark Clock. Click HERE for article.

Interview with NY1: Controversial Developments Will Turn Landmarked Public Spaces into Private Homes. Click HERE.