By Carter B. Horsley
Six leading preservation organizations
filed a brief as amici curiae with the New York Supreme Court
November 4, 2009 in a case challenging the hardship ruling by
the city's Landmarks Preservation Commission authorizing the planned
demolition of the Edward and Theresa O'Toole Medical Services
Building on the west side of Seventh Avenue between 12th and 13th
Streets by St. Vincent's Hospital.
The hospital wants to build
a new hospital on the site and then let the Rudin Family redevelop
its properties on the east side of Seventh Avenue between 11th
and 12th Streets residentially.
The six organizations are the
Municipal Art Society of New York, the New York Landmarks Conservancy,
the National Trust for Historic Preservation, the Preservation
League of New York State, the Greenwich Village society for Historic
Preservation, the Friends of the Upper East Side Historic Districts
and the Brooklyn Heights Association.
The case has been brought by
the Protect the Village Historic District, Historic Districts
Council, DOCOMOMO New York-Tristate, the Historic Neighborhood
Enhancement Alliance, Landmark West!, The Cambridge Owners Corp.,
the 174 West 12th Street Condominium, the John Adams Owners Inc.,
and numerous individuals including Carol Greitzer.
In announcing its participation
in the "friends of the court" brief, the Municipal Art
Society said that it and the other "amici" "have
taken the uncommon step of supporting neither part to the litigation,"
arguing that the intent "is to assist the court in reaching
its determination by outlining the proper judicial test for hardship
relief, as well as the regulatory takings analysis on which that
test is premised."
"By applying a test much
more lenient than the courts have sanctioned, and inventing a
campus-based exception to the Landmarks Law, the LPC has upset
the finely tuned balance the law strikes between the rights and
needs of non-profit property owners and the values of historic
preservation. Even more disturbingly, the LPC's reasoning opens
the door - far more than the Constitution requires - for non-profit
owners of landmarks and buildings within historic districts to
circumvent the requirements of the Landmarks Law," it maintained.
The hospital bought the O'Toole
Building four years after the landmarks commission had included
it within the Greenwich Village Historic District and in 1979
the City Planning Commission permitted the hospital to treat its
properties on both sides of Seventh Avenue as a "large scale
community facility development" so that it could pool all
the air rights together to expand its complex.
The landmarks commission indicated
in May, 2008 that the O'Toole Building, which was designed in
1964 with nautical motifs by Albert Ledner for the National Maritime
Union, could not be demolished under a certificate of appropriateness
because it contributed significantly to the historic district.
The hospital then made a hardship application to demolish it based
on principles in a case involving Sailors Snug Harbor properties
in Staten Island. The landmarks commission subsequently voted
six to four October 28, 2008 to approve the application.
In its "final determination"
May 12, the commission stated that it had relied on the "hardship"
standards of the Snug Harbor case that were "further elaborated
by the Second Circuit" in a famous landmark controversy involved
St. Bartholomew's Episcopal Church on Park Avenue and 50th Street.
"The commission did not
consider, as it must, whether the O'Toole Building would be 'taken'
by enforcement of the regulations imposed upon it by the Landmarks
Law. Instead, in making its Final Determination, the LPC found
that 'the O'Toole Building is part of St. Vincent's campus...."
"The LPC's invention of
a campus-based exception to the judicial test," the brief
concluded, "flies in the face of the United States Supreme
Court's repeated admonitions that property owners may not gerrymander
the definition of their property, and is contrary to the language
of the Landmarks Law, as well as forty years of the state and
federal courts' application of the judicial hardship test."
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