Our Advocacy , Policy

HDC’s Comprehensive Analysis of LPC Rules

Please continue reading for our testimony regarding the latest LPC Rules change under consideration.

The Historic Districts Council (HDC) reviews every public proposal affecting New York City’s landmarks and historic districts and provides testimony to the Landmarks Preservation Commission (LPC) whenever it is needed.

Please continue reading for our testimony regarding the latest Rules change under consideration by the Commission. 


UPDATE

The LPC held a new public hearing on October 16, 2018 on the revised rules proposal. You can read our testimony below. No public meeting has been scheduled yet.


October 16, 2018

Statement of the Historic Districts Council

RL – Rule Citywide

 

PROPOSED RULE-MAKING UNDER THE CITY ADMINISTRATIVE PROCEDURES ACT -REVISION TO THE DRAFT RULES

The Historic Districts Council (HDC) acknowledges and thanks the Landmarks Preservation Commission (LPC) for meeting with our organization throughout this process and for this subsequent opportunity for public testimony on the revised Rule changes. HDC and community groups citywide advocated for a second Public Hearing, and the LPC’s obliging to this matter is appreciated and makes for a better public process. Since the initial hearing in March 2018, crucial and positive changes to the Rules include the elimination of codifying language related to “non-contributing” buildings, and much less permissive guidelines for replacement materials on properties and sidewalk features, including the retention of vault lights. It is evident that the LPC carefully considered the comments of HDC and our partner organizations, and has substantially revised the Rules to reflect the concerns of preservation advocates, community boards, and the New York State Historic Preservation Office.

 

Regarding the proposed Rules, HDC has a few comments and suggestions we ask the Commission to consider, the first being the staff approval of removal and replacement of wooden windows with substitute materials:

 

  • Page 58 ii (B) “At small residential and commercial buildings in historic districts, straight- and archheaded, double-hung wood windows for which the historic condition had no divided lights (without muntins) may be replaced with windows of a different material, including aluminum and fiberglass, but not including vinyl, provided the historic wood brickmolds are retained or replicated in wood, aluminum or fiberglass; the new windows are installed in the same plane as the historic window; and the window and brickmolds have a matching finish that replicates the historic finish.”

 

Given the age of our city’s building stock, one-over-one wooden windows are prolific, historic fabric. Allowing staff-level removal of wooden windows disincentivizes the retention, repair and/or replacement with wood, and green-lights wholesale removal with inferior materials. There is substantial research about the better performance and longer life spans of wooden windows (if maintained properly) as compared with replacement materials like aluminum and vinyl. Damaged wooden windows can be repaired and salvaged to achieve this longevity. Unless in cases where LPC staff has determined that the wood is beyond repair, LPC should encourage applicants to replace historic windows with their original material, as this Rule will affect a majority of buildings in historic districts.

 

Regarding rear yard additions:

 

  • Page 71 (5) A majority of the buildings of a similar type that share the open space within the interior of the block, within the historic district, feature rear yard additions or els;

Language regarding staff-level permits for rear yard additions should be clarified to distinguish between “els”, which typically date to the time of the original construction and are historic features, and “rear yard additions”, which are typically contemporary additions completed many years later. Further, clarification by staff of whether the existing rear yard additions within the interior of a block, which serve as “the majority”, are LPC-approved additions or constructed prior to designation should be determined. This context must be considered prior to issuing a permit for a staff-level addition.

Regarding excavation:

  • Page 72 §2-16 Excavation. (a) Introduction. Excavation on landmark sites or within historic districts must comply with all requirements of the Department of Buildings. The purpose of this section is to ensure that applicants demonstrate they have an understanding of the physical and structural conditions of the building and, where relevant, adjacent buildings, and to protect these buildings.

HDC is pleased that the LPC now retains a structural engineer to aid the staff in excavation permits. In the current real estate market, excavations are a common alteration to buildings to maximize square footage. This practice, however, has an impact on adjacent buildings, and HDC suggests to the Commission that adjacent buildings are always relevant in terms of excavation, not “where relevant”.  Freestanding buildings are a rare exception of landmarked properties in New York, and a substantial amount of excavation work typically affects properties that are in historic districts and usually party-walled. The Commission should consider codifying a policy in the Rules for the protection of adjacent buildings in historic districts near excavation sites, and if possible, provide notification to property owners adjacent to this work. HDC receives many inquiries about excavation work from neighboring property owners, often who are unaware of their neighbors’ excavation. Their notification only commences after cracks or other problems occur in their adjacent properties.

Regarding paving regulation:

  • Page 91: Historic Districts Having Continued Sidewalk Regulation

Out of 6,000 miles of streets in New York City, only 15 miles of Belgian block streets remain, and much less so is protected as part of historic districts. As such, the section regarding sidewalk regulation should be expanded to codify the treatment of Belgian blocks as protected features in historic districts. Just as the Rules includes an appendix of historic districts where historic paving materials are typical, LPC should include historic districts characterized by Belgian block street beds and sidewalks. A few of these areas include DUMBO; Greenwich Village; the South Street Seaport; TriBeCa; Soho; Noho; and Gansevoort. Rules for how Belgian blocks are removed or replaced in districts that have them should be codified so that this is transparent to the public, applicants, and contractors. As LPC staff is aware, this historic paving material is being removed at an alarming rate.

Finally, HDC has one suggestion to add to the Summons section:

  • Page 129, Appendix A: Summons 25-322 (b)

In addition to Summons 25-322(b) which is “Failing to notify lessee of Landmark status in Commercial space”, HDC suggests adding an additional summons for residential space, such as “Failing to notify lessee of Landmark status in Residential space” to the list of Violations Descriptions. In a city of majority renters, it is good public policy to elevate landmark status into the public consciousness as much as possible.

 


UPDATE

The Landmarks Preservation Commission (LPC) will be taking a vote on Tuesday, July 31, to schedule a new public hearing to discuss the revisions to the proposed Rules amendments. The hearing will most likely be in October and the revised text will be available in a few weeks. HDC thanks the LPC for reopening this action to the public and thanks everyone for voicing their concern with the original proposal.


Although they are regarded as being of mainly technical interest to the general public, replacement materials for historic buildings are among the most important aspects of preservation work. The materials which constitute our historic buildings are what give these sites their significance and resonant power. Whenever historic fabric is missing, in proper preservation practice, great pains are made to replicate the missing elements to retain or restore the historic design intent. This is the basic requirement of historic preservation as it has been practiced in the United States since its emergence as an ethic more than 100 years ago. Questions of differentiating replacement materials from original finishes for repair work have been debated by professionals for decades and will probably never reach universal consensus, however, all practitioners agree that the best practice in working with historic structures is to retain historic materials or, with very few exceptions, replace them in kind. This practice is enshrined in the U.S. Secretary of Interior Standards for Preservation, Rehabilitation, Restoration and Reconstruction. While the Landmarks Preservation Commission is not required to hew to those standards, they are a good starting place especially if the project being reviewed does not go through a public review process. Materials on a historic building are meant to last a long time, and inappropriate replacement materials can mar a structure for decades. It is imperative that the LPC requires the highest standard if it plans to forgo the expert and discretionary guidance of the Commissioners. This is unfortunately not the case in many instances proposed in the new rules:

EXAMPLES

  • Page 27 (1) General criteria for replacement materials

Generally, HDC finds the relatively lax approach to replacement materials to be problematic. As the nation’s premier and largest regulatory body of historic properties, it is a missed opportunity to not require higher standards for our built environment, especially in the most expensive real estate market in the United States, where cost and burden are not significant factors to preservation. In an economically depressed city, replacement materials could potentially make more sense, as their cheaper cost could help encourage investment in and revitalization of historic structures. However, in New York, it should not be permissible to sully our historic buildings with plastic applications and it certainly should not be encouraged with a staff-level permit. LPC must encourage the use of quality materials, not just for aesthetic purposes, but for the long-term physical preservation of buildings. It is well known that inferior materials have to be replaced and do not have comparable life spans to authentic materials. Over the long-term, requiring quality materials will eliminate work for the LPC staff, as quality materials almost always have life spans exponentially greater than inferior replacement products. The only instances where HDC might countenance substitute materials being approved without Commissioner oversight would be the replication of a lost architectural feature that is proposed to be restored. It is important to note that this lesser standard would not be acceptable as an element of a restorative program mandated by a Modification of Use or Bulk (under Section74-711). For those special permits, only the highest quality work and materials should be allowed.

  • Page 27 (A) Masonry buildings: Staff can approve replacement materials above the 6th floor, which will affect all work to skyscrapers, and historic districts characterized by large buildings, such as the Upper West and Upper East Side, TriBeca, Noho, Soho and the Downtown Brooklyn Skyscraper district.

 

  • Page 27 (C) Cast iron buildings: above the 2nd floor for discrete elements; rest: above the 6th floor. Given the inherent age and finite stock of cast-iron buildings in New York, in-kind replacements should be the standard for these buildings’ longevity.

 

  • Page 28 (B): The rules would permit staff to approve fiberglass as a replacement for sheet metal and iron above the sixth story. HDC encourages the use of sheet metal cornices, which are readily available, lighter weight, and more durable.

 

  • Page 28 (C): The rules would permit staff to approve fiberglass replacement for elaborate wood cornices above the second story. This proximity is immediately in the public view, and elaborate craftsmanship should be repaired and replaced in kind.
Windows
  • Page 58 (B): This rule change allows replacement of all double-hung wooden windows with aluminum at staff level on small buildings as long as they are straight or arched-headed and do not have divided lights. Small buildings are defined as being six stories or less and having a frontage of forty feet or less, which makes up the majority of building stock in New York City’s historic districts. Thus, this rule change equates to a wholesale removal of windows from public review. It is well-established in historic preservation practice, including practitioners in the historic window sash industries, that aluminum replacement windows are an inferior and short-performing product compared with wood. There is rampant misinformation in the replacement window industry and this lax rule will allow the removal of historic fabric even where it may not be meritorious. Consequentially, once original windows have been replaced in aluminum, there will no longer be a precedent for wood windows to ever return.
  • Page 60 (A): Similar to staff-level window replacement on LPC-defined “small” buildings, “large” buildings, or buildings that are seven stories or more with frontages greater than forty feet, windows may be replaced as long as they match in configuration, operation, details and finish, but materiality was omitted. HDC is concerned with larger buildings that have steel casement windows or other specialized windows endemic to an architectural style will receive staff-permitted replacement windows replicated in inferior materials.
Sidewalks
  • Page 89 (3): This section stipulates that if a sidewalk is missing some of its bluestone pavers or some of them are beyond repair, an applicant may consolidate the usable bluestone and install tinted concrete pavers in the remaining area. Bluestone or granite curbs in need of repair may also be replaced with concrete. Pavers and curbs in historically accurate materials like bluestone and granite contribute to the special character of those historic districts that feature them. Why should the LPC staff not encourage their replacement in-kind, rather than allowing for banal concrete in their place? This rule would short-change our historic districts and remove all incentive for applicants to ever replace in-kind. Looking into the future, as these historic materials inevitably deteriorate, and if this rule change goes into effect, historic paving will become a thing of the past.
  • Page 91 (2-3): Vault lights are a defining feature of former manufacturing districts like SoHo and Tribeca, providing evidence that these districts were once industrial powerhouses, as opposed to the domain of wealthy property owners, shoppers and tourists that we see today. This rule change states that the staff will approve the removal of up to two panels of exposed vault lights that are deteriorated beyond repair if no other vault lights exist on the same side of the block. They may be replaced with diamond plate steel or concrete/granite to match the adjacent sidewalk. For covered vault lights that are deteriorated beyond repair, applicants would now be given the choice to replace them with new vault lights or remove them altogether. Similar to the issue of replacing bluestone pavers with concrete, this would remove all incentive for applicants to replicate this historic detail. Further, given the cost differential between vault lights and diamond plate steel, the public would now have to rely only on the owner’s discretion to safeguard this feature. HDC believes this should fall within the mission of this public agency.

Major Changes & Visibility

Landmark properties in New York City are constantly being altered. Every year, the LPC issues over 13,000 permits for work, which is impressive when one considers the agency only oversees around 36,000 properties. In this churn of change, it is important to be aware of the public perception that landmark buildings are not permitted to change, and if they are, those changes are minimal. While this public perception is not quite accurate, it is helpful to preservation goals overall as it tempers expectations for what is allowed for historic buildings. Keeping high expectations for permitted work deters applicants from proposing massively inappropriate changes that the LPC would be forced to deny even at a public hearing. As denials of proposals tend to lead to public frustrations with government oversight, it benefits the LPC to set a very high standard for allowable additions and alterations that are permitted without public review. Setting a high standard that additions be invisible reinforces the public expectation that additions are the exception, not the rule, and encourages public faith in the security of historic buildings – that what a property owner purchases is what they get. Unfortunately, many of the proposed rules loosen oversight over historic properties in allowing more visible change to happen without public review, rather than strengthening the standards of what can be allowed at staff level.

EXAMPLES

Additions

  • Page 71 (4) (5): HDC understands that current rules allow for rear yard additions at staff level. However, increasing the scope of permissible construction in the rears will have a substantial impact on historic blocks. While the Commission will allow a staff-level rear yard addition for blocks with a “majority” of els or additions, and while the proposed project cannot project deeper or taller than existing accumulations, HDC is concerned about large projects basing their square footage on large, modern additions that were constructed prior to LPC designation. HDC suggests that in these cases, the LPC staff form their decision based on the comparison of historic els and LPC-approved additions, not grandfathered ones.

 

  • Page 72 (a) Allowing construction to cover an entire rear yard with the exception of leaving five feet is an enormous building footprint and seems directly at odds with the LPC’s criteria of “does not substantially diminish the presence of a rear yard”. A five foot strip of a yard is not a yard, but rather an alley. A block’s interior is an important quality of life issue for residents, whether for privacy, greenery, or the benefits of the micro climates that block interiors produce. Thus, rear yard projects are a crucial part of public participation and neighbors need to take part the process of change that occurs next to their homes. Rear yard additions are regularly modified after public hearings, and a large part of these modifications is due to the public process and intimate knowledge that residents bring to the Commission’s attention. If public process is truly honored by the LPC, then some concession needs to be made to allow the public to still participate in public hearings regarding rear yards.
Storefronts
  • Page 35 (1): New storefront infill is allowed if the design is based on historic “prototypes.” HDC believes that any new storefront infill should be approached the same way many applicants often approach design, which is researching what the original configuration was and beginning the design process from historic photographs. In cases where historic photographs cannot be found, HDC would like to have the features of historic storefronts codified in the rules, such as requiring the presence of bulkheads, transoms, and a recessed or splayed entryway.
Window openings
  • Page 64 (B): HDC is concerned about the Rules codifying a prescriptive design for staff-level rear façade treatments, with the only basic criteria being that 24 inches of cheekwalls be retained and that 12 inches recalling a missing floor be retained. We firmly believe that properties under LPC regulation generally benefit from the Commission’s and public’s comments, and as a result, the proposed interventions are usually more attractive and better-designed. Creating a loose design blueprint for rear façade design, in our opinion, may encourage banal design and a general erosion of aesthetics on rear facades. Similar to our critique of the spare storefront prototype, HDC suggests creating more parameters or prototypes for rear facades, or doing away with this basic one.
HVAC
  • Page 102 (B): This rule change would allow staff to approve through-wall HVAC equipment centered below window openings on primary facades of buildings within historic districts, given the building is seven or more stories tall or has 40 or more feet of street frontage. This means that a tenant in a large apartment building may apply to punch a hole beneath their window without public review, even if it is clearly visible from the public way. HDC believes that such incursions, even if the rules stipulate that no decorative or significant features are damaged or removed, should not be allowed without a hearing. At the very least, applicants should be required to apply for a Master Plan to avoid a pock-marked effect on the building, and such installations on primary façades should be limited to only the upper stories. However, due to the fact that large apartment buildings, hotels and other types of large multiple dwellings are extremely common in the city’s historic districts, we feel that each situation should be assessed for its appropriateness at a public hearing.

Unclear and Shifting Standards of Regulation

The LPC is an agency of immense but limited power. On one hand, it has the power to regulate private property within its own discretion and to its own self-ascribed standards. On the other hand, it can only regulate designated landmark properties, which are 3.5% of the total properties in New York City. The agency has no power over any other properties regardless of their age or historic significance. Additionally, the LPC only has authority over the physical form of the structure and not its use or function. HDC is very concerned about a drifting standard of regulation being inserted into the proposed rules, which actually diminishes the agency’s authority to oversee those rare properties it does regulate. Specifically:

EXAMPLES

  • “Contributing” language: There are several instances of language such as “if the building contributes to the landmark or historic district” {e.g. page 30, Section 2-11, D(1); page 37 (9); page 53 “Definitions”, page 60 (D), page 61 (D)}. This language is damaging to the integrity of the Landmarks Law and introduces a sliding scale of regulation. HDC made a study of the designation reports and there are, generously, 717 buildings within all existing historic districts and extensions which are specifically listed as “no style” or “non-contributing”. Rounding up, this means that 2% of the existing landmark properties might be designated “non-contributing” by their regulatory documents. There is no need to introduce ambiguity into all regulation in order to account for these few outliers. Furthermore, HDC understands that certain buildings will be considered “non-contributing” if deemed so in previously-issued Certificates of Appropriateness. This would compound the sliding scale of regulation and further obscure the public’s understanding of the landmark regulation process. If this practice is instituted, and we strongly recommend that it is not, it needs to be properly defined, and a public method of determining the status of these buildings must be created.

 

  • “Characteristic of the Specific Historic District”: This language, which is used with reference to additions (page 68) and fire escapes (page 108), is an additional weakening of the Landmarks Law, especially in its lack of definition. Specific lists of which historic districts are characterized by which features should be created, much the same way the specific historic districts which possess historic sidewalks and paving, (page 93, Appendix A) are listed.

Miscellaneous Concerns

Excavations and Archaeology

One of the few sweeping powers of the Landmarks Preservation Commission is its authority as the local lead agency for archaeological matters. Archaeology is an important tool for understanding our history and can illuminate aspects of our city’s development that would be otherwise invisible and forgotten. Although they have shared goals, archaeological techniques differ from preservation techniques in that they are more focused on documentation and understanding than on the physical retention of historic fabric in situ. Currently, archaeological supervision is only activated by publicly-funded excavation projects. However, excavation of private property, undertaken by private entities, is equally likely to impact potentially significant buried cultural resources as projects utilizing public funds. This has been demonstrated in multiple instances in New York City. With this goal in mind, HDC suggests the following language and ideas to be incorporated into page 73, Section 2-16:

  • Private properties within historic districts should be subject to all historic preservation laws including archaeological guidelines.

 

  • With regard to archaeological resources that may be exposed during any excavation, their potential significance is not known until they are exposed. Private properties that are subject to consideration of architectural preservation standards and guidelines should also be subject to consideration of potential archaeological resources during excavation-related activities.

 

  • If archaeological resources are exposed during the excavation of private properties, the property owner should be required to inform the LPC. In turn, the LPC should develop guidelines to make an assessment of potential significance and documentation of the exposed resources.

Permit Renewals

In HDC’s review of the proposed rules changes, we noticed that certain of the technical aspects of the permits are being altered, such as their duration. This is not the first time they have been altered – Certificates of Appropriateness originally had no expiration date, which led to unfortunate situations such as the Plaza Hotel, where permits for alteration of the dormers issued in the 1980’s were still valid 20 years later despite several changes in ownership and programmatic use.

On page 123, in Section 7-03, (2)ii, it is proposed that a Certificate of Appropriateness be allowed to be extended for an additional 3 years after its initial term of 6 years – for a maximum allowance of 9 years validity without public review. As the NYC mayoral term is limited to 8 years, this would mean that all CofAs would perforce outlast the Commission which issued them. This doesn’t seem to us to be the most accountable practice, to either the public or the Landmarks Commissioners. We strongly recommend that CofAs expire after 6 years, at which point they should be required to go for a public hearing for a renewal.

Public Notification

There is broad concern about lack of public involvement in the LPC’s permitting process. As landmark designation is a public good which serves the public trust, this is a concern which the Historic Districts Council feels warrants attention and, where possible, amelioration. At the same time, we are fully aware that bringing the more than 13,000 permit requests the agency receives annually to public hearings would paralyze the agency and cause undue hardship for applicants. Based on what we hear from our constituents and neighborhood partners, much of the concern is about transparency and expectation. Simply put, people who have an interest in and are invested with New York City’s landmarks and historic districts wish to know what is being proposed for their future.

With this in mind, we would strongly encourage the LPC’s continued efforts to increase transparency by making permit applications available for review by the public. It is a valuable service and an important one to encourage the better public understanding of the landmarks process. Furthermore, in order to both encourage public participation in the process and strengthen public investment in that process, we would recommend that the LPC investigate the possibility of incorporating some level of public review into staff-level permits. While this might sound like a bridge too far, we would suggest that the Landmarks Commission look at the how the Buildings Department deals with these types of permits through the Development Challenge Process. In this process, there is an opportunity for the public to review submitted plans before approval and challenge them if felt necessary. This triggers a further review by Buildings professional staff and, if necessary, the Building Borough and First Deputy Commissioners. Obviously this system would need to be adapted to the Landmarks Permitting Process, but we believe that it would be a worthwhile avenue of consideration for the agency.