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Gotham Gazette -- Land Use
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Citizens Union

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Land Use
Topic Pages / Land Use

Internet resources for what you need to know on NYC Land Use/Zoning
Sites for Beginners

The Topic
"Land Use" refers to the processes by which alterations are made to the built environment and the principles and laws which govern these alterations. Such changes include construction, demolition or renovation of buildings, changes to streets and sidewalks, and designation of historic landmarks. A city's land use policies have far-reaching effects which delve into social, economic and political arenas. Eventually they are the ultimate arbiter of how a city develops. "Zoning" refers to New York City's Zoning Resolution - first passed in 1916 and overhauled in 1961 - that enumerates the rules for land use.
The Context
New York City has over 200,000 acres of land, and we fight over every square foot. The city's land use policies set the stage for that fight. Will there be parks? And where? How high can Donald Trump build? All these questions and more are relegated to the land use arena.
The Reporter
Joshua S. Trauner, who has a Masters in Urban Planning from NYU's Wagner School, is vice president of Real Capital Analytics, a new company creating a database of real estate transactions.
The Archives
See past monthly updates for Land Use.
by Leonard Jacobs
Guest Reporter

The Landmark Loophole: How Protected Structures Can Still Face Demolition

(March '01) The New York City Landmarks Preservation Commission, created by Mayor Robert F. Wagner in 1965 following the demolition of the old Pennsylvania Station, has been widely acclaimed as a pioneer in preservation work. Nearly every Broadway theater, for instance, has been granted landmark status, whether for the exterior of the theatre, the interior, or (frequently) both.

The work of the 11-member Commission mainly involves the regulation and protection of over 20,000 buildings (some interior, some exterior, some both), plus various "historic districts" and "scenic landmarks" in each of the five boroughs. Under a broad statute in which a tree may even be designated a "landmark," how exactly do you define a landmark? According to Barbaralee Diamonstein's book, "The Landmarks of New York," a landmark is "a structure at least thirty years old . . . that has a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation."

In recent years, under the leadership of Commissioner Jennifer J. Raab, a Giuliani appointee (who is leaving to become the president of Hunter College), the Commission has also developed a reputation as the benevolent referee between preservationists and property owners and developers, their eyes all keenly attuned to the economy.

To be sure, New York City's "landmark law" is a largely rigorous and pro-preservationist one; every mayor since Wagner, including Mayor Giuliani, has supported the Commission's work. Whether reviewing applications to alter landmarked structures (subject to public review) or reviewing the thousands of new requests for designation, the work of the Commission has much good will from city planners, businesspeople, and historians alike.

That a structure granted "landmark status" is protected from wanton destruction is well-known. What is not well-known, however -- and what the Commission would prefer to keep little-known -- is the fact that some circumstances do legally allow a so-called protected structure to be demolished.

All an owner need do is prove that the landmark is an economic hardship for him.

Under such circumstances, most landmarks are vulnerable. It was in 1982, the year Wall Street's bull market first began fueling a remarkable period of development, that three historic Broadway theaters -- the Helen Hayes, the Bijou, and the Morosco -- were demolished to make room for the Marriott Marquis Hotel. A coalition of artists and politicians quickly formed, seeking a mass "landmarking of Broadway" that would protect the remaining theaters into perpetuity. Broadway theater owners adamantly opposed the move at the time, fearing they would be unable to continue profiting from these structures, but the Commission did designate most of them as landmarks.

No one then could have foreseen the dramatic economic revival of Times Square. The boom was helped along by changes in the zoning resolution to allow theater owners to sell the "development rights" above low-rise theaters. It is a long-shot, but it is possible that one day, Broadway's three main theatre owners -- the Shubert Organization, the Nederlander Organization, and the Jujamcyn Organization -- may plead economic hardship in order to raze Broadway playhouses once again.

Obtaining permission to demolish a landmark is a long and torturous process, but it can happen under several circumstances.

Demolition is meant to be a last resort, especially in cases of economic hardship. First there must be an official finding of hardship; nobody is going to take the owner's word for it.

"The burden of proof is on the owner," says Alex Herrera, director of technical services for the New York Landmarks Conservancy, which provides grants, low-interest loans, hands-on consulting services, workshops, and publications in order to help owners of historic properties preserve what they have.

Then, if the Landmarks Preservation Commission determines that an owner cannot earn a reasonable return on their investment (currently six percent), the Commission can seek tax breaks for the owner, or even obtain an "appropriate protective interest," a euphemism for a new owner.

The Commission has a limited amount of time to remedy the situation,. It is only after every available alternative has been exhausted that the Commission may allow the property owner to demolish the structure.

"It's a testimonial that New York is in such good condition and that landmarks are really a very positive thing that the provision has hardly been used," Herrera says.

But it has been used. The owners of the Coogan Building, a former racquet club at West 26th Street and the Avenue of the Americas, of a group of row houses on Central Park West, and of the former Mt. Neboh Temple, all claimed economic hardship. The Commission explored all alternatives, to no avail. All these landmarks have been demolished.

The Mt. Neboh case is of particular interest to preservationists and developers alike. "When you are dealing with a religious institution," Herrera says, "there's a much more fungible definition of what hardship is." Some congregations, for instance, have determined that their house of worship is "no longer suitable for its intended purpose," so instead of a six percent rule determining economic hardship, the demolishing of a religious property may be requested in order to accommodate the needs of the congregation.

This does not mean that houses of worship have free reign. In 1984, St. Bartholomew's Church, on Park Avenue and East 50th Street, proposed to demolish its landmarked Community House and replace it with an office tower, the first few floors of which would provide the Church with much-needed space. The Landmarks Preservation Commission denied the request. Subsequent appeals went all the way to the Supreme Court, which ruled in favor of the Commission. The Court cited, however, the "safety valve" embedded in the law - the right of owners to demolish their landmarks under certain circumstances.

Of course, there are other ways to destroy houses of worship and Broadway theaters besides demolishing them. The Nederlander Organization closed the Mark Hellinger Theater, a landmark, by selling to a religious organization, which made it into the Times Square Church. The end of this theater - and the beginning of this church - needed approval by the City Planning Commission. But since the sale did not materially affect the physical structure, the Landmarks Preservation Commission had nothing to say about this theatrical "demolition" (or spiritual "development.")

Sites For Beginners:

  • How Zoning Works - An overview of zoning: its definition, purpose and implementation in NYS and NYC. This primer also explains who has authority to make which decisions, with accompanying laws and citations. Excellent.
  • NYC Department of Planning - The official City site. Not frequently updated, but a good repository for official New York City Land Use documents. Find the complete text of the Zoning Resolution (a hard copy would run you $400+) and downloadable zoning maps. Find out which zone you live in!
  • Regional Plan Association - The venerable and still influential pro-planning organization. Particularly good for information on big-item controversies, e.g. Governor's Island. Second Avenue subway, anti-sprawl legislation. Check out their MetroLink proposal and the Gowanus Tunnel Study.
  • NY Metro APA - A small site for the local chapter of the national professional organization: American Planning Association.
  • Municipal Arts Society - A great place for all things regarding New York architecture, design, and land use. Most relevant: their coverage of the Zoning Reforms, and its accompanying informational booklet.
  • NYU's Urban Planning Links Page - This page is chock full of great land use links which focus both on NYC and the USA.

Other Recommendations:

  • Air Rights - An old Gotham Gazette Issue of the Week, still relevant and interesting, though a slightly arcane Land Use topic.
  • Tenant Net - A great source for NYC real estate, if slightly biased toward the leassee.
  • "The Cultivator by Martin Filler" - A fascinatingly critical article about Fredrick Law Olmsted and what's wrong with Witold Rybczynski's new biography of him. From The New Republic.
  • New York Landmarks Preservation - Packed with information on preservation and restoration of landmarked buildings.
  • New York City Landmarks Preservation Commission - The Official City site for landmarks preservation.
  • Pace Law School Center for Land Use - Excellent introduction to land use issues by a leading academic think tank. Check out the "Land Use for Local Leaders" section.
  • Van Alen Institute - An immense amount of information on current and future NYC land use issues. Start with the well organized, user-friendly contents page and then zero in on your prime concern.

Visit the Topic Archives!

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Gotham Gazette is published by Citizens Union Foundation and is made possible by support from the Robert Sterling Clark Foundation, the John S. and James L. Knight Foundation, the Altman Foundation,the Fund for the City of New York and donors to Citizens Union Foundation. Please consider supporting Citizens Union Foundation's public education programs. Critical early support to Gotham Gazette was provided by the Charles H. Revson Foundation, Rockefeller Brothers Fund and the Alfred P. Sloan Foundation.

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