Problems with the Landmarks Preservation Law

New York City adopted its current law creating a Landmarks Preservation Commission in 1965. Since then, the law has been used abusively as a substitute for spot zoning which is illegal. In 1980, the Committee of Religious Leaders established the Interfaith Commission to Study the Landmarking of Religious Property. Its Final Report was issued in 1982 and is available online. This report was very influential in the enactment by Congress of the Religious Freedom Restoration Act of 1993 and the Religious Land Use and Institutionalize Persons Act of 2000.

Here is a critique of the current application of the law, especially as it impacts negatively on the ability of religious congregations to use their own resources for there ministry.

1. Every step of the process – designation, certificate of appropriateness, hardship – is completely capricious. The total lack of any objective standard is a fundamentally unfair burden inflicted on all citizens, but falling most harshly on charities and religious owners.

There is no true standard for designation other than the (venerable?) age of 30 for individual landmarks (no age requirement for buildings in districts), just whatever is the Commission’s notion of a building or district with “special character” at that moment.

The same is true with respect to alterations and applications for certificates of appropriateness. There is no predictable guidance as there is with building and zoning codes. Plans are drawn (at some expense) and presented to the Commission, only to be told that the Commission’s architect in attendance prefers round windows to the proposed rectangular. At the next hearing, that architect is not there, but one who was absent at the first, prefers gothic. How many times should an owner have to have plans redrawn in an effort to guess what is in vogue with the Commission this month?

As to hardship, the process is completely dysfunctional, especially with respect to nonprofit owners like churches and synagogues. The commercial standard is an inability to earn a 6% rate of return on investment, a fixed percentage established in 1965 and not revised since then because the Landmarks Preservation Commission would not tolerate an amendment to its sacred law. For nonprofit owners, the standard is that IF the building were commercial, that would it be INCAPABLE of earning the 6% rate of return. How can one establish proof with respect to a compounded speculation? By estimating the rental value of boutiques cantilevered down the center aisle? The Courts early on (1974) found this standard completely unworkable (but, again, we must not amend the LPC’s sacred law). So, the judicial standard for nonprofits is that the continued maintenance of the landmark building threatens the existence of the church or charity and its ability to fulfill its mission. In other words, all charitable resources (endowments, etc.) must be depleted on the undesired building before the Commission will consider (with unbridled “discretion”) whether or not to release the designation. Donald Trump would only have to show that the particular property is underperforming, the church would have to exhaust all corporate assets before it will even merit consideration. Is it any wonder that no church has been released from landmarking except when the building was destroyed completely by fire?

2. With respect to religious communities, we believe that there is an inherent violation of our free exercise rights under the First Amendment. Designation, frequently over the objection of the congregation and often to preclude a renovation or replacement of an old building no longer useful or efficient for ministry in this era, is both an exercise in illegal spot zoning and the usurpation by government of ALL of the resources of the congregation, overriding the authority and responsibility of the congregation’s leadership. This is made all the worst because of the arbitrary and capricious nature of the administrative code and the Commission’s long-standing failure to promulgate clear standards.

3. Alleged “benefits” are a fraud. Ever since the Municipal Arts Society and the LPC conspired to extort money from a developer to create the NYC Landmarks Conservancy, the three of them have routinely tried to euchre congregations into applying for or consenting to landmarking with promises of funds to do repair and restoration work. The typical $3,000 to $5,000 “grant” from the Conservancy is designated to pay the Conservancy’s architectural “consultant” to draw up a list of preservationist-styled repairs to be completed at the congregation’s expense. The rare, true grants from all preservationist sources combined likely represents less that 5% of the cost of any project, generally in the hundreds of thousands or millions of dollars and well beyond the reach of the congregation without some type of income producing development. The Commission (City), of course makes no grants. Gail Brewer promised the West Park Presbyterian Church that she would raise funds for the church which was frozen two years ago by an unwanted designation. To my knowledge, this has not happened and the church is suffering because of the Commission’s predatory action which was affirmed by the City Council.

Various tax benefits and transfer to development rights are unavailable to nonprofits. In Manhattan (though rarely elsewhere), TDRs are theoretically possible, but in the absence of an eager purchaser located contiguous to the congregation, they are either worthless or sold at distressed prices because of their limited marketability. The one case to reach the US Supreme Court in 1978 involving Grand Central Terminal and the proposal to build an office tower above the terminal was decided on the basis of Penn Central’s ownership of a chain of adjacent property any of which would be capable of receiving the Terminal’s unused development rights and, therefore, no unconstitutional taking of property; a truly unique set of facts.

4. The problem is endemic to the landmarks law and it application. Political attention ought to be directed to serious amendment of the law and the creation of clear, objective standards. There is no point to run workshops for congregations to train them how to roll over and passively submit to this type of unconscionable rape by the LPC and its special-interest cronies.

At the 1984 conference on Government Intervention in Religious Affairs, co-sponsored by several national religious bodies – National Council of the Churches of Christ in the USA, US Catholic Conference, Synagogue Council of America., National Association of Evangelicals, Lutheran Council in the USA, and Southern Baptist Convention – a presentation was made on the negative affect of landmarking laws on religious ministry. The paper, Ministry v. Mortar: A Landmark Conflict, is available online.



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