Sunday, November 30, 2008

Landmarks Preservation Commission: Will Times Special Series Have it All Covered?

The New York Times is running a series of articles that will bring some welcome attention to shortcomings of the city landmarks preservation process. The two articles that have run so far after a “six-month examination of the commission’s operations” contain some very good reporting but notable omissions in the story being told force us to wonder: Are they saving some major criticism for a future article in the series?

The Two Times Articles in the Series

The two articles that have run so far are: Preserving the City: An Opaque and Lengthy Road to Landmark Status, By Robin Pogrebin, November 25, 2008and Preserving the City: Preservationists See Bulldozers Charging Through a Loophole, By Robin Pogrebin, November 28, 2008.

Each is about the lack of protection the landmarks law affords to proposed landmarks which have not yet been so designated. The first focuses on how the Landmarks Preservation Commission can sometimes move inordinately slowly toward landmarking buildings and neighborhoods. There is a lack of transparency in providing reasons for why progress is slow when it is. The city agency is underfunded but that does not address questions about selectivity in the priorities being pursued. The second article is about the way that developers race against preservationists to destroy buildings and the loose, loopholed structure that often lets developers win.

Unmentioned Mayoral Influence, but Mentioned in Earlier Editorial

Remarkably, neither article mentions the influence of the city office of the mayor in relation to the Landmarks Preservation Commission and neither article mentions the particular influence of the current mayor, Michael R. Bloomberg.

We previously wrote about a New York Times October editorial, The Missing Landmarks Commission, (published October 17, 2008) which excoriated the LPC for lack of effective action to prevent the Commission’s being “routinely outflanked by developers.” (See: Sunday, October 19, 2008, Building the Right Landmarks Case; Wrong Building.) That editorial at least acknowledged the mayor is a significant participant in what needs to be fixed about the process. It is the mayor “who appoints the commissioners” noted the editorial and it called for the commission to develop the “the political will” needed to do its job by getting the “full backing” from the mayor to that end.

Times Needs to Catch Up with Bad Bloomberg Behavior

That was the Times editorial page, not a news analysis story such as the series now being run. In a follow-up post we noted that the Times editorial page, in this case and in others, has been in the position of having to play a lot of catch-up in trying to rein in Bloomberg’s bad mayoral behavior, an entirely unfortunate state of affairs since two Times editorials have pushed Bloomberg much closer to his coveted third term by endorsing term limits changes. (See: Saturday, November 15, 2008, The Mayor, The Times’ Timing, and a Proper Ordering.)

Example (Miner) of Mayor Control over the LPC

The influence of the mayor over the Landmarks Preservation Commission did not begin with Bloomberg. It was written about at length in a now rather famous, (and famously long) op-ed piece alleging LPC process failures by Tom Wolfe lambasting the Commission (See: Op-Ed Contributor, The (Naked) City and the Undead, November 26, 2006.) Wolfe was writing in the time of Bloomberg but he also wrote about earlier mayors. Most recently the subject of mayoral control popped up in the Times obituary for Dorothy Miner, former longtime counsel to the New York City Landmarks Preservation Commission (Dorothy Miner, 72, Legal Innovator, Dies, by David W. Dunlap, October 23, 2008). A lot of people, including ourselves, thought Dorothy was a superb person and respected her terrifically. Dorothy Miner left the LPC when, as one quoted individual states in the obituary, Mayor Rudolph W. Giuliani “decided he would accede to the real estate industry and press to remove her as counsel.”

Ms. Miner’s obituary tells the story of a public servant who was effective in faithfully helping the LPC to perform its mission. She insisted on “principle and procedure.” She performed an important role in winning the court case that preserved Grand Central Station and defended the historic designation of St. Bartholomew’s Church on Park Avenue. She:

helped devise the legal framework under which it designated the 17th-century street plan of Lower Manhattan as a landmark in 1983. That stopped developers from further eradicating the neighborhood’s characteristically irregular blocks.
Judicial Direction to LPC: Don’t Let Applications Languish

As the first article in the Times series notes at the outset, as the result of a lawsuit the commission has been ordered to now “start making timely decisions on every designation request.” The lawsuit was brought by preservationists after the commission let a year 2000 request to expand the Park Slope Historic District go into perpetual bureaucratic limbo. Wrote the ruling judge,
Marilyn Shafer, to allow such proposals “to languish is to defeat the very purpose of the L.P.C. and invite the loss of irreplaceable landmarks.” According to the Times, “In her ruling, Justice Shafer also ordered that any request for designation be submitted to the commission’s request committee within 120 days of receipt.”

Under Bloomberg a Less Transparent, More Autocratic, LPC Process

As important, or more important than how fast submitted landmark requests get acted upon, is what gets selected to be considered by all the commissioners and how that selection is made. The Times reports that under Bloomberg, an insufficiently transparent process to determine this became autocratically controlled and less transparent in 2004. Ironically, the change came in response to a request by the Historic Districts Council to make the process more transparent. To wit:

. . .a designation committee consisting of a group of commissioners once evaluated proposals and recommended which ones should be forwarded to the full commission for consideration at a public hearing. In something of a paradox, the committee was abolished after it was challenged by the Historic Districts Council, which argued that its closed-door meetings violated the Open Meetings Law.
(Since we think that the committee meeting behind closed doors was a violation of the open meetings law, we wonder how things would have been if a stickler like Dorothy Miner had been around to assert herself as counsel.)

The change in process that thereafter came about means that the commission’s paid chairman, Robert B. Tierney “and the staff decide what proposals should be forwarded to the 11 commissioners.” In the lawsuit the plaintiff, Citizens Emergency Committee to Preserve Preservation “assailed what it describes as the chairman’s “absolute power” over the landmark process.” According to a quoted commission researcher in the article “All the final calls are his.”

Chairman Tierney’s Qualifications as a Preservationist

The Times reports criticism of Chairman Tierney’s qualifications as a preservationist:

“He’s a guy who’s had no demonstrable interest in historic preservation, who has the most important preservation job in New York City,” said Anthony C. Wood, author of “Preserving New York: Winning the Right to Protect a City’s Landmarks” (Routledge, 2008), and a party to the suit.
Problem with Deadlines & Need for Selectivity; (Self-inflicted?) Limitation on LPC Resources

In the lawsuit the commission opposed the setting of deadlines. Part of the problem is that the commission, with what the article describes “one of the smallest budgets of any city agency,” only has manpower enough to proceed selectively. Notwithstanding that the limited resources constrain the commission in pursuit of its mission, Chairman Tierney (who gave reason to defend his action in the Times article):

. . . declined a budget increase of $750,000 approved by the City Council; instead the commission ended up getting an increase of just $50,000 for a total Council allocation of $300,000. (The current budget is $4.7 million.)
A Reason for Selectivity Not Mentioned by the Times

One thing the Times has not mentioned in its writings is that it is not insufficient staff alone that holds the LPC back. The LPC also needs to hold itself back so as not to overplay its hand and provoke a backlash if it goes beyond the level of activism and regulation the public will support. We are not talking about backlash from the real estate community: The real estate community should not have special veto power over commission activity. We are talking about what level of activity the general public will support. When development feels too constrained there can be a backlash from the general public. Right now, that does not seem to be much of a problem because mostly the public is clamoring for more protection.

Real Estate Community Support for LPC

Even if it seems initially counterintuitive, we think the real estate community should support a properly functioning Landmarks Preservation Commission. We note that this is not the case. When LPC was facing a funding cutback this year, the Real Estate Board of New York (REBNY) did not enter the fray to support full funding for the LPC.

REBNY ought to support full funding because when its members own properties that are or become landmarks it speeds up processing time. In real estate, time is money. More important, landmarking increases and provides stable support for the real estate value of neighborhoods and the city overall. It's obvious the real estate industry does well when real estate values are high.

Harder Job for Tierney

Given that LPC Chairman Tierney has assumed so much responsibility unto himself, he has therefore assumed a role that involves some delicate balancing. We suspect he is aware of this and takes the real responsibility of not provoking backlash seriously because he probably earnestly does not want the LPC to lose support. That means, however, that another essential part of his job is convincing both sides, preservationists and developers, that he is walking the line properly. The need for preservationist credentials aside, it probably makes his need for political skills paramount. It is to his advantage to convince preservationists to be patient because he is working with them while at the same time convincing developers that certain actions are in fact necessary to keep at bay more forceful publicly driven initiatives. That may be well and fine, but while he placates and strikes a balance, how may the biddings of the mayor be factoring in? If one had enough power and influence, would one be speaking to a placating Chairman Tierney or directly to the mayor?

Is Failure Sometimes Just Orchestrated Political Theater?

The Times second article explores an allegation that even when the LPC is progressing toward protection under Tierney, the speed with which it is progressing may not be in earnest. “Pre-emptive demolitions” can make a process that is underway meaningless. Speaking about the Dakota Stables, in exactly such an instance, Kate Wood, the executive director of the preservationist group Landmark West!, said:

“The commission had no intention of designating Dakota Stables,” . . . “They waited until it had been torn down. It was clearly too late for them to do anything meaningful.”

“It was all so carefully orchestrated,” she added. “It was politics. It was all just theater.”
Mayoral Influence May Not Be Awkwardly Apparent in Selectively Process, but . . .

The mayor can exercise influence with a minimal and largely indiscernible effort at these initial stages when the only questions are what gets assigned priority to proceed to evaluation at a commission hearing (and how fast it proceeds there) and where the decision is, as now, solely Chairman Tierney’s. Although the Times has not as yet written about what happens at later stages, the whole commission is involved when you are dealing with buildings and districts that have already been designated as landmark.

Because decisions before the commission should be made consistent with precedent, the surfacing of resulting awkwardness can disclose the likely operation of influence. Such was the case when the LPC squirmed to evade precedent in dealing with the Rudin / St. Vincent’s real estate deal. In that recent case, which will be challenged, part of the Greenwich Village Historic District is essentially being sold off, partly to permit a profitable Rudin Development real estate deal and partly so that funds raised thereby can be used to subsidize St. Vincent’s Hospital. We wonder what would have happened if Dorothy Miner, who insisted on “principle and procedure,” was still around.

Inaction Means the Destruction of Historic Jewel Buildings

Depending on the circumstances of a race with developers, selective inaction by the commission often means the destruction of historic buildings. The Times gives examples of favorite public buildings the commission has not acted upon, including a building at the real estate Tiffany-location of all Tiffany-locations: Tiffany itself. Though the proposed landmarking has not been acted on, Tiffany has not been destroyed. Many of the landmarks of concern mentioned in the article are in Manhattan; mentioned is Edward Durell Stone’s 1964 “lollipop” building at 2 Columbus Circle, which was prominently written about in the Times October editorial (which we commented upon.)

Superlative Example of Selectivity Not Mentioned by the Times: The Ward Bakery Building

Not mentioned was the Ward Bakery Building. The selectivity of its nondesignation and the ensuing destruction that resulted would have been well worth writing about to make a number of points. It is our understanding that landmarking protection was specifically not to be made available for the Ward Building. We can only presume that was a decision for which Mayor Bloomberg was responsible. Yes, sometimes developers race with the LPC to destroy landmarks before they can be designated, but Ward Bakery serves as an excellent example of a situation where one side is not even running.

(Click on picture above to enlarge.)

When the LPD designated all the property around the Ward Bakery Building as a historic district, we testified and wrote an updating piece on how obviously and wrongly the Ward Bakery Building had been carefully excluded from the landmarking. The LPC proceeded right after the demolition of the Ward Bakery Building was already well underway. (See: Wednesday, October 29, 2008, Puzzle Pieces: Proposed Prospect Heights Historic District, LPC Public Hearing)

Buildings in Jeopardy, Including 28 in Downtown Brooklyn

(photo from MAS on-line report)

The Times article is worth reading for the historic landmarks of concern that are mentioned, but its short representative list is far from exhaustive. We should be asking how energetically the race with developers is being run about all of them. For instance, not mentioned amongst the candidates for landmarking that the LPC is very slowly considering are many buildings in Brooklyn’s downtown. There are so many buildings of quality in the area that one could consider designating a whole landmark district, but the effort undertaken has been one of individual designations. Buildings in Downtown Brooklyn stand to be especially vulnerable to destruction because of the “death sentence by density” that is likely to come with the area’s recent significant upzoning. Sixteen buildings were initially nominated in 2004, two soon thereafter designated. (See: Groups Seek Landmarking for `Architecturally Significant Buildings` in Downtown Plan Area, by Linda Collins, 02-07-2004 and BHA gets 2 Downtown buildings landmarked, by Jess Wisloski, The Brooklyn Paper, March 26, 2005) At present the Municipal Art Society says that of 28 buildings identified, only four have now been designated by the Landmarks Preservation Commission. A MAS report with photographs of the 28 building is available at their site.

(Iamge taken from MAS on-line report)

Inverse Values: Targeting for Destruction What the Community Values

Precisely because many of the buildings in Downtown Brooklyn are so beautiful and historic they are particularly likely to be targets for cultural vandalism on the part of developer owners. The second Times article makes clear how buildings with enough value to be landmarked are especially likely to be targets for destruction because of the possibility that their value to the community might be recognized.

This peculiar situation is not a neutral race with developers. Developers actually seek to identify what the larger community values and place their priority on destroying it. They do so whether or not they are ready to replace the building. The developers target and seek to erase a building’s historic and “distinctive features,” obtaining “stripping permits” with the purpose of irreparably damaging these features of a building so that the buildings are no longer be landmark-worthy.

Absurdist Example: Progress Toward Protection, a Phone Call from LPC Chairman Can Provoke Destruction of Candidates for Landmarking

Putting a property on the LPC calendar provides it with temporary protection from pre-emptive demolitions. Building owners may not thereafter obtain demolition or alteration permits. Problematically, before hearings are scheduled Chairman Mr. Tierney or commission staff reporting to him contact the owners “to explain the potential benefits of landmark designation.” That advance notification can backfire and cause a pre-emptive demolition.

While the Times offers the characterization that “the number of pre-emptive demolitions across the city may be relatively small,” legislative bills to make the process more rational have been suggested by City Council members Tony Avella and Rosie Mendez. Both bills are in line with a suggestion made by Commissioner Roberta Brandes Gratz that would provide a good foundation for reform:
“When a property owner goes to the buildings department for a permit to strip, it should be a red flag,”

Example of Developer Inverse Values Writ Large: Ward Bakery Building Destruction; Destruction Continues

The inverse value structure of destroying what is valued by a community precisely because the community values it is the situation which was writ large in the case of the Ratner Organization’s destruction of the Ward Bakery Building. The Ratner Organization cynically hoped that by destroying what the community valued, they might make future approvals and extreme subsidies for the Atlantic Yard megadevelopment more likely. In the case of a building like the Dakota Stables, cornices and “round-arched windows and serpentine ornamentation,” were the valued and historic features being erased so that the building would not be saved. The historic and distinctive Ward Bakery Building was to the Prospect Heights neighborhood what a distinctive cornice is to the building. The Ward bakery Building was destroyed by Ratner in hopes that he would tilt the playing field in favor of his destroying a swath of neighborhood with subsequent public subsidy.

Just as there is no legitimate need to destroy cornices, round-arched windows and serpentine ornamentation first, there was no need to destroy the Ward Bakery Building so soon. It will probably be decades hence if it is ever replaced by Ratner at all. Still, this kind of demolition, driven by Ratner’s inverse values, continues today as he targets for demolition first that which has greatest value to the community. The current case in point is the demolition of three attractive town houses on Dean Street. (See: Monday, November 24, 2008, Even as lawsuits delay construction, demolition on Dean Street creates facts on the ground (and blight) and November 29, 2008 Atlantic Yards: What's missing from this picture?)

Legal vs. Illegal Destruction of Cornices

In the case of the Times second article and situations like the removal of the cornice of the Dakota Stables, the Times was writing about destruction which is unfortunately legal. The Ward Bakery Building suffered a sudden, suspicious parapet collapse that effectively removed the building’s cornice. Workmen were in the building. The substantial amount of parapet that collapsed seemed unusual. It also seemed unusual given that one would have expected a building in use only a few years ago to have been sturdy.

The collapse came at a time when politicians might still have mobilized effectively to preserve the building from destruction, either through landmarking or through a political agreement to postpone its demolition until the future and the rationality for its eventual destruction or nondestruction could be better discerned. It might be said that Ratner and his allies in the Bloomberg administration were in no real danger of having destruction of the Ward Bakery Building prevented. But it is also quite possible that they had no desire to expend political capital to secure their ability to demolish. The “collapsing” also gave an appearance of out-of-control deterioration that might seem to have warranted demolition. (See: Friday, April 27, 2007, Details, comments, questions emerge about the falling parapet at the Ward Bakery.)

When Developer Inverse Values Become Reflexive

If it becomes reflexive for developers such as Bruce Ratner to target for destruction the distinctive characteristics of a neighborhood that the public might value and to do so in order to maintain control of public discourse, what does it say of their overall mentality? What does it say about those, including Mayor Bloomberg, who closely associate with them? Let’s see if one of the future Times articles writes about Mayor Bloomberg’s allegiances and actions in this arena.

No comments: