Legal Memorandum LU08


Preservation of historic resources is an endeavor in which the Federal government, the State of New York, large corporations and individual home owners have become involved. Projects range in scope from the restoration of huge inner city opera houses evoking the elegance and almost mythological talents of performers lost to time; to modest inner city row houses or humble farmhouses. For many people, preservation is a passionate devotion of their lives to the protection and restoration of the achievements of our fore bearers. For municipalities, successful historic preservation achieves one of the primary mandates for elected officials: economic vitality.

The protection and preservation of historic resources by municipalities for economic, cultural, aesthetic and other considerations has been found by our nation’s courts to be a valid exercise of municipal police power. One of the most important cases upholding the validity of a historic landmarks law is Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), in which the United States Supreme Court upheld the validity of a city law which prevented an owner from building in the air space above its property. Allowing the construction would have significantly altered the historic exterior architecture and appearance of Grand Central Station, and while not addressed by the Court, the interior features as well. The Court ruled against the owner on the issue of whether the law was an unconstitutional taking of private property without just compensation.

In addition to this precedent, authority for historic preservation enactments has also been codified by New York State. Section 96-a of the General Municipal Law, provides:

...any county, city, town or village is empowered to provide by regulations, special conditions and restrictions for the protection, enhancement, perpetuation and use of places, districts, sites, buildings, structures, works of art, and other objects having a special character or special historical or aesthetic interest or value...

Other sources of authority include § 10[1](a)(11) of the Municipal Home Rule Law which empowers counties, cities, towns and villages to adopt local laws for " of its physical and visual environment." This would include historic preservation.

In the beginning, historic preservation laws sought to control the appearance and alteration of the exteriors of historic resources and neighboring structures. Because of privacy concerns and fear of excessive government intrusion, these laws did not regulate the interiors of historic structures. This line, however, has been breached, as courts have upheld the extension of municipal regulatory controls for historic preservation purposes to building interiors on the basis that doing so serves a legitimate public purpose of preserving historic interiors for present and future generations.

In 1973, the City of New York amended its Landmarks Preservation Law to allow the Landmarks Commission to designate interior landmarks as historic, "for the education, pleasure and welfare of the people of the city" (N.Y. Administrative Code § 25-301[b][g]). It was not until 1993 in the case Teachers Insurance and Annuity Assn. v. City of New York, 82 N.Y.2d 35, that the Court of Appeals, New York State’s highest court, was presented with the opportunity to review the amendment, which allowed historic designation of places customarily open or accessible to the public, or to which the public was customarily invited. The Court determined that a restaurant, like a theater or railroad station lobby, is a place into which the public is customarily invited. The Court also upheld N.Y. Administrative Code § 25-302[l], which provided that the interior landmark designation also applied to:

[The] interior architectural features [defined as the] architectural style, design, general arrangement and components of an interior, including, but not limited to, the kind, color and texture of the building material and the type and style of all windows, doors, lights, signs and other fixtures appurtenant to such interior.

The Court interpreted the language "and other fixtures appurtenant to such interior" very broadly. When coupled with the ruling that the restaurant was a place to which the public was customarily invited, the Court confirmed the Landmarks Commission’s landmark designation of the building’s entrance, lobby, Grill Room, Pool Room and balcony dining rooms, a marble pool, walnut bar, wall surfaces, ceiling surfaces, doors, railings, draperies, and two hanging metal sculptures. Provided a local historic preservation enactment contains provisions similar to the ones affirmed by the Court in this case (or provides even greater specificity), it appears the municipality could designate other items such as furniture, light fixtures, hardware, wood work, stairways, fireplaces and mantles, carpets, decorative moldings and so forth. As is true of local enactments dealing with historic preservation generally, it is important that the significance of the interiors and interior elements to be preserved be supported through thorough investigation and documentation.

Thus, New York’s municipalities may protect certain historic interiors through local laws, although it is still not the practice to do so where completely private structures, such as residences, are involved.