April 30, 2015 David F. DobbinsOf Counsel(212) 336-2800dfdobbins@pbwt.com

By Federal Express and E-mail

Commissioner Meenakshi Srinivasan, ChairNew York City Landmarks Preservation Commission1 Centre Street9th Floor NorthNew York, NY 10007

Re: February 23, 2015 Landmarks Preservation CommissionAnnouncement Concerning Proposed Landmark “Backlog”

Dear Chair Srinivasan:

We represent historian, author and preservation activist Michael Henry Adamsand preservationist Ronald L. Melichar in connection with the above matter. We write on behalfof Mr. Adams and Mr. Melichar in response to the Landmarks Preservation Commission’s (the“Commission”) February 23, 2015 announcement and request for submissions regarding theCommission’s plans to address an apparent “backlog” of properties calendared to be consideredfor landmark protection. The position set forth below has been endorsed by concernednon-profit organizations and individuals listed in the Appendix to this letter (the “ConcernedStakeholders”).

In late November 2014, the Commission announced plans to consider a proposalat its December 9, 2014 meeting to issue “No Action Letters” to ninety-six buildings and sites onthe Commission’s calendar for five years or longer. The plan was to remove these proposedlandmarks from the Commission’s calendar, thus ending protections afforded to proposedlandmarks such as the prohibition on demolition, alteration or construction without priornotification to the Commission. The properties proposed for de-calendaring include manyhistorically important and iconic properties such as the former IRT Powerhouse, the BergdorfGoodman building, the Pepsi sign in Long Island City, and Union Square Park.

The proposed de-calendaring plan received strong opposition from historicpreservation groups and elected officials. The Commission decided on December 5, 2014 todelay implementation of its de-calendaring proposal. Yet as the February 23 announcementmakes clear, the Commission remains committed to clearing its calendar “without reference tomerit.”

Commissioner Meenakshi Srinivasan, ChairNew York City Landmarks Preservation CommissionApril 30, 2015Page 2

While the Commission has discretion in making administrative determinations,that discretion is not unbounded. Any new standards that the Commission implements to addresslong-calendared properties must have a rational basis. See Matter of Murphy v. N.Y. State Div. ofHous. & Cmty. Renewal, 21 N.Y.3d 649, 652 (2013). This means that the Commission’sdeterminations with respect to calendared properties must be made with regard to the factsrelevant to whether the properties merit landmark protection. See id. To have a rational basis,any determination on whether a property should be landmarked must be made in conjunctionwith a merit-based vote on the property’s designation. Without a vote on the merits, theCommission’s action would be arbitrary and would lack a rational basis.

Providing reasoned determinations on the merits of proposed landmarks is theonly way the Commission can address its calendar in a manner consistent with the statutorylanguage and underlying purposes of the Landmarks Preservation Law (“Landmarks Law”). Asthe Court of Appeals has held, an administrative agency may exercise rulemaking authorityprovided its rules are “not inconsistent with the statutory language or [the] underlying purposes”of the agency’s enabling legislation. GE Capital Corp. v. State Div. of Tax Appeals, 2 N.Y.3d249, 254 (2004). Stated another way, an agency “may adopt only rules and regulations whichare in harmony with the [enabling] statute’s over-all purpose.” Id.

In this instance, the Landmarks Law is the product of the City Council’srecognition fifty years ago “as a matter of public policy that the protection, enhancement,perpetuation and use of improvements and landscape features of special character or specialhistorical or aesthetic interest or value is a public necessity and is required in the interest of thehealth, prosperity, safety and welfare of the people.” N.Y.C. Admin. Code § 25-301. Nothing inthe Landmarks Law, the rules of the Commission, or the Commission’s historical practicesenvisages write-offs of calendared properties for staleness. See N.Y.C. Admin. Code §§ 25-301-25-322; R.C.N.Y. Title 63: Landmarks Preservation Commission.

To permit de-calendaring “without reference to merit” of up to 95 properties—each calendared by a vote of the Commission based on a prima facie recognition that theproperty merited consideration for landmark protection—would be inconsistent with thelanguage and purpose of the Landmarks Law and thus outside the Commission’s regulatoryauthority. Properties are calendared after thorough review of their historical character and value.To remove them now for staleness would annul the LPC’s own findings that the properties meritconsideration.

The Commission claims that a No Action Letter would not “prevent theCommission from re-calendaring the building or site in the future.” But this is little consolationfor de-calendaring properties that actually merit landmark protection. As the Commission surelyunderstands, during the years it would take stakeholders to submit new requests for evaluationand achieve re-calendaring, nothing would prevent removal or alteration of the improvements

Commissioner Meenakshi Srinivasan, Chair New York City Landmarks Preservation Commission April 30, 2015 Page 3

that led the Commission to calendar these historically significant properties in the first place. In reality, deserving landmarks could be lost forever.

Moreover, as a procedural matter, implementing substantial changes to the Commission’s standards and procedures for evaluating calendared properties would constitute a rulemaking governed by the City Administrative Procedure Act ("CAPA"). See Mailer of Council ofihe City o/7V. Y v. Dep ’I of Homeless Services of the City of N, Y, 22 N.Y.3d 150, 153-54(2013); City Charter § 104 1(5). The Commission therefore cannot legally change its standards for removing proposed landmarks from its calendar without first publishing the full text of the proposed rule and holding a public hearing at which interested parties are given an opportunity to be heard on the proposed rule. See City Charter §§ 1043(b), (e).

In sum, under established law the Commission cannot begin to issue No Action Letters for calendared properties "without reference to merit" as proposed. Such a drastic administrative action would plainly lack a rational basis and run counter to the authorizations of the Landmarks Law. If the Commission intends to implement new standards for addressing long-calendared properties, it should do so in accordance with CAPA rulemaking procedures.

In light of the potential for irreparable injury in this matter, we request at least two days’ advance notice after May 1, 2015 of the Commission’s intent to issue No Action Letters removing properties from the Commission’s calendar, so that we may apply to a court of competent jurisdiction for immediate injunctive relief. We also request that the Commission would waive the bond requirement of CPLR 6312(b) since these matters are of public interest.

Very truly yours,

David F. Dobbins

Appendix

Commissioner Meenakshi Srinivasan, ChairNew York City Landmarks Preservation CommissionApril 30, 2015Page 4

APPENDIXENDORSING CONCERNED STAKEHOLDERS

Landmark West!The Committee to Preservethe Upper West Sidelandmarkwest.org

Tribeca Trusttribecatrust.org

Jeremiah MossAuthor of Jeremiah’s Vanishing New York(vanishingnewyork.blogspot.com)Founder of #SaveNYC(savenyc.nyc)

Hamilton Heights-West HarlemCommunity PreservationOrganizationwestharlemcpo.org

Friends of South Street Seaportfriendsofsouthstreetseaport.com

Rego-Forest Preservation Councilregoforestpreservation.blogspot.com

Marcus Garvey Park Alliancemgpalliance.org

Citizens Emergency Committee toPreserve Preservation

Queens Preservation Council The Victorian Society New Yorkvicsocny.org

Mount Morris Park CommunityPreservation Organizationmmpcia.org