LANDMARK WEST!
LEGAL STRATEGIES FOR LANDMARKS:
MAY 19, 2009
The Constitutional Underpinnings of Landmark Preservation
Gabriel North Seymour, Esq.
The value of landmark preservation has received the highest recognition:
The United States Supreme Court has held:
"The concept of the public welfare is broad and inclusive * * * The values it represents are spiritual as well as
physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community
should be beautiful as well as healthy...." Berman v. Parker, 348 U.S. 26, 33 (1954)
Where does the designation power come from?
Social and Governmental Investment vs. Private Investment in Property
United States Constitution Provisions
I. "Takings Clause" [Due Process Clause]:
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in
actual service in time of war or public danger; nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
II. Police (or Zoning) Powers Derive From the Power of the People (Local Jurisdiction) to Regulate for
the Public Health, Safety and Welfare
Amendment X [applied through Amendment XIV, Due Process Clause]
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people.
NY's Landmark Preservation Law Has Withstood Different Kinds of Attacks:
In the Matter of Manhattan Club v. Landmarks Preservation Commission of the City of New York, 51
Misc. 2d 556 (1966)
Argument: "that the designation constitutes a deprivation of property without due process of law....a taking of
private property without just compensation, and an impairment of a pre-existing contract to sell the property."
Rejected: Preservation is a legitimate goal of government, to promote the public welfare, and in order for
an ordinance (preservation law) to be confiscatory and unconstitutional, it is not enough to show just
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lower profits, no profits or actual loss; confiscation would occur only if the ordinance (preservation law)
precluded the use of the property 'for any purpose for which it is reasonably adapted.'
In the Matter of the Application of Edward Gilbert v. Bd. of Estimate of the City of New York, 177 A.D.2d
252 (1991)
Argument: City Board of Estimate extending designation as historic district to include a block that had
previously been denied inclusion was arbitrary.
Rejected: Previous consideration and rejection by LPC of the qualities of a property or properties does
not preclude subsequent reevaluation by LPC, the results of which will withstand legal challenge where
there is substantial evidence of reasonable basis for the designation in the record.
Shubert Organization, Inc. v. Landmarks Preservation Com'n of the City of New York, N.Y.A.D. 1
Dep't., 1991
Argument: Landmark designation of an entire theatre district was outside the LPC's authority.
Rejected: Where there is reasonable basis of the statutory criteria in the Landmarks Law for the
designation of each individual theatre within the district, designation even for the purpose of preserving
the theatre industry was permissible, and the law is constitutional for this purpose, where it serves a
legitimate purpose of saving historic landmarks, and where the property owners are not deprived of all
economic value of the buildings, as they could still be used for theatre productions.
See also Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978)
In the Matter of Teachers Ins. and Annuity Ass'n of America v. City of New York, 82 N.Y.2d 35 (1993)
Argument: "that LPC has no authority to designate interior spaces [of a restaurant], that designation of spaces
for specific uses is prohibited, and that LPC has no authority to designate fixtures appurtenant to an interior."
Rejected: Where there is support in the record, a reasonable basis in law, and the action is not arbitrary,
landmark designation is a legitimate administrative determination that will withstand challenge, and such
designation does not require the property owner's consent.
Cautionary Cases:
×The ownership and use of a structure may bestow special status to deflect preservation designation. (See
Church of St. Paul and St. Andrew v. Kent L. Barwick, et al, Landmarks Preservation Commission, 67 N.Y.2d
510 (1986) in which a
church had First Amendment rights that trumped preservation designation, which the court held would infringe
on those rights.)
×If there is a historic treasure in your neighborhood, don't wait until you see a wrecking ball before you
seek designation. (See In the Matter of Walter Dean v. City of New York Dep't of Buildings, 177 Misc. 2d 687
(1998), in which effort to get an injunction against demolition was found to be too little too late where the
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developer had lawfully obtained all permits. Courts do not have the power to compel LPC to entertain
applications for landmark status.)
×If landmark designation should prohibit the use to which the property is devoted at the time of
designation, the designation would be an unconstitutional taking. (See Lutheran Church in America v. City
of New York, 35 N.Y.2d 121 (1974), in which the Church organization owned a residential property for which it
already had renovation plans in hand at the time the Landmarks Preservation law was passed into law.)
Benefits to the Community:
The New York Court of Appeals recognized that many of the attributes of private property are the result
of "incidental influences" or "contributing external factors derived from the social complex in which the
property rests." Penn Central Transportation Company v. City of New York, 42 N.Y.2d 324, 328 (1977).
Benefits Flowing from Organized Society to the Property -- Not the Other Way Around
"So many of these attributes are not the result of private effort or investment but of opportunities for the
utilization or exploitation which an organized society offers to any private enterprise,..." (Ibid.) "These...
constitute a background of massive social and governmental investment in the organized community without
which the private enterprise could neither exist nor prosper.... it is enough that the privately created ingredient of
property receive a reasonable return....All else is society's contribution by the sweat of its brow and the
expenditure of its funds. To that extent society is also entitled to its due." (Ibid.)
Penn Central:
Plaintiffs sought a judgment that denial by LPC of a certificate of appropriateness for a tall office
building over Penn Central constituted an illegal "taking," (or, deprivation of property without due process of
law). While not a zoning case, the controversy was deemed to be similar because of the "restrictions imposed
on the use of the property." (at 329)
The Court looked at the purposes behind the government [preservation] regulation, contrasting them
with other such regulation:
The Court Contrasted "Preservation" With Zoning:
"zoning" (which is "designed to maintain the character, both economic and esthetic or cultural, of an area.") (at
330)
"historic district regulation" which "concentrates instead on preventing alteration or demolition of existing
structures." (at 330)
"In each case, owners although burdened by the restrictions also benefit, to some extent, from the
furtherance of a general community plan." (at 330)
The Court also contrasted "preservation":
the "taking" in eminent domain:
"there is no taking for which just compensation must be paid. And it is the concept of just compensation which
is so integrally related to value based on return. Instead, landmark regulation is a limitation on exploitation of
property, an attribute shared with the classifications of zoning and historic districting....landmark regulation is
different because the burden of limitation is borne by a single owner. He may or may not benefit from that
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limitation but his neighbors most likely will. In contrast both an owner and his neighbors benefit to some degree
and in some manner from zoning and historic districting. (at 330)
In the decision on the appeal in Penn Central, Justice Brennan wrote for the Court that there was a recognized
trade off of benefits for the property owner:
"Although the designation of a landmark and landmark site restricts the owner's control over the parcel,
designation also enhances the economic position of the landmark owner in one significant respect. Under New
York City's zoning laws, owners of real property who have not developed their property to the full extent
permitted by the applicable zoning laws are allowed to transfer development rights to contiguous parcels on the
same city block."
Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 114(1978)
Hard Lessons:
Since a reviewing court may not substitute its judgment for that of the administrative agency, it is essential
to support, with "substantial evidence" (the standard of review of the agency's determination) at the
administrative level, the position taken before the Commission. It was on this basis that designation of the
Manhattan Club (and others) was upheld. See, In the Matter of Manhattan Club v. Landmarks Preservation
Commission of the City of New York, 51 Misc. 2d 556 (1966). If such substantial evidence is not in the record
on an alternate position, the original agency decision will stand.
Preservation is a legitimate goal of government, to promote the public welfare:
"Such values are a 'valid subject of legislative concern' and 'reasonable legislation designed to promote that end
is a valid and permissible exercise of the police power.' People v. Stover, 12 N Y 2d 462, 467 (1963) * * * the
promotion of the general welfare includes the historical and cultural purpose envisaged by the city
[Landmarks Preservation] law." In the Matter of Manhattan Club v. Landmarks Preservation Commission of
the City of New York, 51 Misc. 2d 556, 559- 560 (1966)
Remember (Page 1) the Lessons of History:

Preservation is a legitimate goal of government

Previous consideration and rejection by LPC of the qualities of a property or properties does not
preclude subsequent reevaluation by LPC, the results of which will withstand legal challenge
where there is substantial evidence of reasonable basis for the designation in the record.

Where there is reasonable basis of the statutory criteria in the Landmarks Law for the
designation of each individual theatre within the district, designation even for the purpose of
preserving the theatre industry was permissible, and the law is constitutional for this purpose,
where it serves a legitimate purpose of saving historic landmarks, and where the property owners
are not deprived of all economic value of the buildings, as they could still be used for theatre
productions.

Where there is support in the record, a reasonable basis in law, and the action is not arbitrary,
landmark designation is a legitimate administrative determination that will withstand challenge
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