Final Report of the Interfaith Commission to Study the Landmarking of Religious Property

APPENDIX A
Administrative Procedures Before the New York City Landmarks Preservation Commission

1. Initial Designation as a Landmark

Any entity, including a private person or group, a governmental agency or a corporation, can propose a building or district for designation as a landmark. The Commission's policy is to require that all such proposals be in writing. The Commission staff preliminarily evaluates the proposal and if the Commission's Chairman (in discretionary consultation with one or more of the other Commissioners) so directs, the staff visits the site, takes photos, researches the historical background, proposes boundaries (if a district) and submits a report to the Commission. If the Commission feels the proposal lacks merit, it is dropped. Otherwise, the Commissioners visit the site to determine whether the proposal should be scheduled for a public hearing. The Commission may also, at this point, arrange for community consultation through the local Community Board and perhaps with other neighborhood groups. At this stage, it is still theoretically possible for the Commission to determine that the proposal lacks merit, in which case it would be dropped.

If a building is selected for calendaring at a public hearing, a legally required notice is sent to the owner, the local Community Board and certain public officials. A notice of the hearing is published for ten working days in The City Record. A public hearing may be conducted by as few as only one member of the Landmarks Preservation Commission. At the hearing, the owner of each property on the calendar of that hearing and any other person, including representatives (lawyer, architect, etc.) may make an oral presentation in favor of or in opposition to the designation. The owner and any others may also file written material.s. A hearing, as to each property treated separately, may be "closed," "continued," or "closed with the record kept open" (to permit later receipt of written materials by a specified deadline). After the hearing the research staff submits to the Commission a "designation report" on each property giving full historical, aesthetic and other information about it. No other aspects of the matter such as economic hardship, constitutional violations or impairment of ministries may be considered.

The Commission then meets separately in executive session to take a separate vote on each property as to which there had been a hearing. An affirmative vote of six of the eleven members of the Commission is required for designation. If the vote is insufficient for designation, the procedure is ended as to that property and the owner and others are so notified. If the vote is sufficient for designation, the property immediately becomes a "landmark" for all purposes and is thereupon subject to the regulatory jurisdiction of the Commission. It then becomes a criminal offense (misdemeanor) to demolish, remove or alter the building without the Commission's permission, even though the designation decision is by no means final, as noted helow. Also, at this time, notice of the designation is sent to the owner and to the land recording office. This latter step prevents the issuance of a construction or demolition permit without the consent of the Commission. Although there seems to be no legal authority for doing so, the Commission claims the right to file some form of notice with the City Building Department to prevent the issuance of a construction or demolition permit even though the property has not been landmarked, or ever scheduled for a hearing. This, the Commission's Counsel says, would be done if the Commission assumed the building might be altered or demolished before the legally required landmarking process could be completed.

Within 5 days of the designation the Commission must file a copy of the designation with the Board of Estimate and certain other City Departments. The Board of Estimate must in turn notify the City Planning Commission which, in turn, must report back to the Board of Estimate on the effect of the designation on City's master zoning plan.

Within 90 days after the filing of the copy of the designation with the Board of Estimate, the Board "may" modify or disapprove the designation, and any such action is immediately effective. The Board of Estimate will also hold a public hearing to consider any landmark designation referred to it for review. The Landmarks law is defective and prejudicial to owners because it does not specify whether the Board of Estimate must review a designation and it does not specify the effect of its failure to review. By analogy to other parallel provisions of the law it may be concluded that a designation is rescinded if the Board of Estimate fails to approve it, but such an important point should not be left to implication.

If the Board affirms the designation, the owner is so notified. If it rejects or modifies the designation, the owner is so notified and a document is filed in the land records to remove the landmarking entry or to modify it, as the case may be. This action or failure to act on the part of the Board of Estimate results in the finalization of the administrative procedures with respect to the designation of a property or district as a New York City Landmark.

2. Alteration of a Designated Structure

Once the Commission has designated a building as a landmark, its jurisdiction extends only to those exterior portions of the building which are visible to the public and over interiors which have been so designated. Interiors of places of worship may not, by law, be designated but this exemption may not apply to clergy residences, schools and other such affiliated properties. Any modification, however slight, whether interior or exterior, and whether or not it would require a construction permit, must have the prior approval of the Commission.

An application, with plans, photos and perhaps other materials, must be submitted to the Commission for permission to make the alterations. Meetings with owners may be required. If the Commission feels the proposed work would not impair the architectural appearance or structural integrity of the structure, it will issue a document of permission to the Department of Buildings and, where appropriate, to the owner. Without this document, the Department of Buildings will not issue a permit to begin the alteration work.

There are 3 types of documents: (i) a "Certificate of No Effect on Protected Architectural Features" (issued where the proposed alteration or repair would not affect a protected feature of the building); (ii) a "Permit for Minor Work" (issued to permit work on a protected feature which is so slight that a construction permit is not required and the work will not significantly impair the building's architectural character; Commission representatives will visit the site before issuing this permit); (iii) a "Certificate of Appropriateness" (issued to permit major work on a protected feature which will be done in such a manner as to restore or not impair the architectural character or structural integrity of the building; a site visit and a public hearing are required ,before such a certificate will be issued).

Applications for Permits for Minor Work must be acted on by the Commission within 20 days, those for Certificates of No Effect within 30 days, and those for Certificate of Appropriateness within 90 days. However, even if the Commission fails to act upon any such application within the required time, it still remains illegal for the owner to proceed with the work, his only recourse being to sue the Commission to force it to act. This situation is unfairly prejudicial to the owner of the property.

3. Removal of a Designation ("De-landmarking")

If a religious organization wishes to demolish its landmarked building or to alter it so that its landmark qualities will be impaired or destroyed, it must institute an entirely new administrative proceeding in which it must show to the Commission's satisfaction: (i) that it has contracted to sell the property or to lease it for at least 20 years; (ii) that the building, if it were not tax-exempt, could not earn a "reasonable return" of profit (as defined); (iii) that the building is no longer suitable for the organization's purposes; and (iv) that certain other requirements have been met. The law is prejudicial to owners in that it makes no provision for de-landmarking where an owner wishes to develop his property while retaining, ownership of it. If the Commission is satisfied on all these points it must then endeavor to find another purchaser (or tenant) who would be willing to buy (or lease) the building on "reasonably equivalent" terms without impairing its landmark qualities. If no such purchaser or tenant can be found, the Commission must recommend to the Mayor that the City buy ("condemn") the property or at least an interest therein sufficient to protect the landmarked features. If the recommendation is accepted, the necessary City finds must he appropriated. Apparently there has never been such an appropriation even though tens of thousands of City structures have been landmarked. Another potential for abusive treatment of the owner of a useless building arises from the fact that, instead of condemning an entire building and paying fair value for it, the City could condemn only an "interest" in the building, such as a facade easement, for which only a nominal sum need be paid but which would achieve the same result as in full condemnation by effectively preventing the demolition or alteration of the useless building.

The time limits for all these de-landmarking procedures are specified by law and they would exceed one year.