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We WON on the Clocktower Public Access Lawsuit!

By LE on Mar 31, 2016 04:36 pm

-Landmark History Happened Today-

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In a world where developers run our city in a kind of tragic oligarchy, it is nice to be reminded that justice against the developers can sometimes still prevail. Here is the happy story.

You may remember last year the case of the great landmarked building at 346 Broadway. It has – among other glories – a wonderful Clocktower Suite with a huge mechanical clock, one that is similar in character to that of Big Ben in London. The suite and the clock were specifically designated as interior landmarks. The suite had customarily been open to the public since at least 1918. It was open for tours, scenic viewing of Lower Manhattan from the outdoor veranda, and for public events. It had also housed a public art gallery, art studios, and an “alternative” arts-oriented radio station. The City even appointed an official (unpaid) Clock Master to care for immense clock mechanism. Then, in an eyebrow-raising sale, the City sold the building to a developer, the Peebles Corporation. And then came the coup de grace. The Landmarks Preservation Commission, in a hotly contested public hearing – gave the developer a “certificate of appropriateness” to renovate the suite and to electrify the ancient mechanical clock mechanism – all in preparation for converting the suite to a private condo to profit Peebles. The public would no longer be allowed access.

Many were outraged – for several reasons. There was the sneaky way of privatizing the public part of a landmark. There was the getting around the official de-ascension procedure to remove a building’s landmark status. And last, there was the callous treatment of the rare and immense clock. Therefore, a group of us agreed to become plaintiffs in a lawsuit. The attorney was the brilliant Michael Hiller. Our group of plaintiffs was the Tribeca Trust, Save America’s Clocks (board and president), the Historic Districts Council, the city’s clock master Marvin Schneider and assistant clock master, Forest Markowitz, Alana Heiss, and Chris DeSantis, author of an authoritative book on mechanical clocks.

We sued the developer, Peebles, Beyer Blinder Bell Architects, and the City of New York, specifically the Landmarks Preservation Commission. Our court date was a few months back.

Today, March 31st, Judge Lynn Kotler finally issued her opinion. The result: the LPC decision to issue a certificate of appropriateness is overturned and declared to be “irrational, arbitrary, or capricious.” The judge wrote that the decision was irrational because the LPC is supposed to protect, enhance, and perpetuate landmarks, and that the permit would “render the Clocktower Suite ineligible to be designated an interior landmark once the work [of dismantlement] is completed.” Basically, the LPC was doing the opposite of what it was supposed to be doing.  The C. of A. is annulled.  Done!

There were also errors of law when the LPC gave Peebles the go-ahead to electrify the clock. The LPC had claimed that it was within its discretionary power to do so, but the court said instead that such a decision was to be based on interpretation of the actual statutes, a power that is “an issue of law for the courts.”

Here is the best quote from the ruling:

“Even though the Landmarks Law does not expressly require that public access to an interior landmark be maintained, absent an express limitation to that extent, the general provisions of the Landmarks Law vest the Commission with the power to regulate an interior landmark. That power must include the ability to direct an Owner to maintain public access, since public access is a specific characteristic of an interior landmark.” (Ruling, page 12)

Having witnessed the presentation of arguments in court myself, I gotta say, Michael Hiller was a class act. He was deeply prepared for every counter-argument, extremely precise, logical, and thoughtful, while the attorneys for the City and developer were, in my opinion, none of those things in front of the Judge.

It is a clear victory and an important one for landmarks law.

Nonetheless, problems remain at 346 Broadway unrelated to this lawsuit. The first is that the developer obtained permission from an overly supine LPC to put an entire glass spaceship “penthouse floor” on top of the building, adding considerably to the developer’s profits at the expense of the integrity of the landmark. The glass spaceship will be visible from all around. How that decision is not also considered “irrational, arbitrary, and capricious,” I will never know. But we did not sue over that part of the problem, darn it.

The second problem is that of improper dealing by the City. The CIO of Peebles is Tawan Davis. He used to work for the New York City Economic Development Corporation during the actual sale. (conflict of interest, anyone?) When a former top executive at Peebles (Daniel Newhouse) filed a suit last year against the developer over a profit sharing issue, it came out as incidental information the claim that Davis, while working for the City, gave Peebles insider information on other bids for 346 Broadway. How our Attorney General or at City Comptroller Scott Stringer is not all over that one, I don’t know either.

And the last problem is this: when the city was moving the law courts from 346 Broadway to another location on Hudson Street, Tribeca residents banded together and sued over the transfer of the courts. The city very quickly agreed not to locate the courts on Hudson Street and residents decided to drop the suit. Apparently it was the irregularities over the city’s sale of the building that made the City so willing to accommodate the contentious neighbors. Did the City not want that can of worms opened? Did those irregularities have to do with Tawan Davis? Perhaps we need another suit to find out.

Meanwhile, celebrate, one and all. The public got a rare win this time.  And to add icing to the cake, our community board landmarks committee in CB 1 recently admonished Peebles to put back the iron ball on top of the building.  Wouldn’t that be nice too?

346 Broadway-with sculpture

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Water Street and the Theft of Public Domain

By LE on Mar 31, 2016 04:30 pm

City To Bless Theft (?) of the Public Domain – This Time on Water Street


Lynn Ellsworth

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 A neighbor alerted me to the following bureaucratic drama over public private plazas.  It turns out that the City Planning Commission will be holding a hearing this Wednesday at 10:00 at 22 Reade Street (held March 28) to discuss a zoning text amendment that would allow the owners of a string of properties along Water Street to convert the long frontages of public-private plazas (known as “POPS”) into commercial retail spaces. Yet the income from the leases of newly created retail spaces will not accrue to the public. It won’t actually support the maintenance and improvement of public spaces elsewhere in Lower Manhattan – although one of the building owners is the maintenance partner of an extremely sad looking neighboring, corporate plaza. 

That seems like a poor deal in the extreme and potentially a really big legal problem. Is the City Comptroller studying this deal?  I hope so.

 So what’s a POPS and how might this act constitute theft of public resources? Simply put, a POPS is a public amenity that the city forces a developer to give something to the people of New York in a crude “exchange,” one that allows a developer to harm the public in some other way.  Typically a developer asks to break the zoning rules in a way that harms neighborhood character or steals air, views, and sunlight from the public.  Since 1961 the City has said that they can go ahead and do so, as long as the developer creates a public amenity of some kind in exchange for the harm. However, since 1974 the many deals to make these POPS have been codified in considerable detail. (The deals made for POPS made between 1961 and 1974 are more nebulous).  Usually the amenity the city asks for is some kind of park or plaza. 

POPS were inventoried a few years back in a book by a Harvard professor named Jerold Kayden.  His inventory drew a lot of people’s attention to the how awful most of the plazas are.  You’ve seen POPS all over. The little garden in front of the tower at 105 Duane is a POPS, one of the better ones.  The huge spaces surrounding Citibank at Greenwich and Desbrosses are another example of a POPS. The ugly plaza in front of the Harley showroom at Walker and Broadway is a POPS.

Most POPS are notorious for being design failures and for the total absence of any real public amenity within them. Architectural critics and civic groups with an eye to the public interest have long argued that we need to stop making these bad deals that create POPS. In fact, former City Planning Commission Joe Rose once proposed that we change the zoning to just disallow these these POPS deals altogether.  The Real Estate Board of New York, predictably, was not in favor of that firm a change in the rules.  Although as the Water Street deal makes clear, it is high time to revisit Mr. Rose’s proposed ban.

The Water Street POPS are no exception to the long history of design failure of POPS  and in terms of their failure to serve the public interest.  The buildings on  Water Street are just excessively tall, banal office towers and the public-private arcades underneath them are not very useful public spaces.  For this reason, not many New Yorkers would mourn the transformation of the arcades into something else.  Retail is not a bad idea for them.  But what kind of retail?  And what would the city do with the rents from that public space?  The City get the rents, right? 

Oops, no mention of rents in the text amendment up for public hearing.

Rents just aren’t part of the discussion. Why?  Instead, there is only the vaguest notion of a “compensating amenity” which could be a drinking fountain or a garbage can for all we know.  For this reason, it appears to be merely the kind of old-school deal in which the city relinquishes a space and gives it back to the developer.  What a terrible deal for the public!  It’s saying to the developer, hey dude, not only can you build taller than allowed and create ugly buildings, but you don’t have to give anything of substance back to the public in exchange.  Instead,the public will be happy as little serf-like consumers, thrilled at the potential existence of yet another Duane Reade or Victoria’s Secret corporatist shopping experience, while all of our other public spaces deteriorate from lack of investment.  At best we get a restaurant with a few outdoor tables (hardly a public amenity).  And are we supposed to  cheerlead at how the developer just got richer by developing what remains of the public domain?

And what would happen if we made such bad deals like this all around the city?  “Here, Big Real Estate Lords, take your POPS back for commercial development because municipal government is too lazy to figure out how to use the space for the genuine public interest, as the law intended.  And hey, you don’t have to give us anything specific, we’ll just trust some future bureaucrat to make sure of a ‘compensating amenity.'” Wow.  Is this what municipal administration looks like in the Time of Oligarchy?

It looks to me very much like a kind of theft of public resources, bizarrely sanctioned by our developer-dominated municipal government.  And the additional sanctioning of the deal by the community board is another interesting mystery that I’d love to get the inside story on. Community board vote or no, it is a precedent that should not go forward.  Now might be a good time to revisit again all the plaza rules in general (some of which seem up for grabs in another hearing the same day) and not as a mere text amendment, but as a ULURP change that requires greater public debate and scrutiny.  

So where does that leave us?  You can go to the hearing and tell them not to do it. [I did and so did MAS and a few others].  But they probably will go forward anyway.  So, what about lawsuits?  Where are those public-spirited City Club lawyers when you need them? 

Maybe of course, we need to reform the process itself so that instead of a bureaucratic text amendment, we have a new way for the public to argue about this and present alternatives. It would also be nice – since I’m dreaming up a new and fairer process  – to build in public access to public-interest zoning specialists who are not affiliated with, dominated by, or captured by Big Real Estate. 

Debate and corrections invited on the issue.  Should there be POPS deals anymore?  And should we give existing ugly POPS back to the developers for retail conversion? If so, what should we get in exchange?

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