Historic preservation law focuses overwhelmingly on exterior structures, those architectural and artistic details that are visible to any passerby.1 The ability to preserve these structures as landmarks was famously upheld as constitutional in Penn Central Transportation Co. v. New York City.2 However, the U.S. Supreme Court has been silent on questions of interior landmarks,3 those pieces of cultural heritage that occupy a liminal space between public (accessible, open) and private (exclusive, closed). Recently, in Save America’s Clocks, Inc. v. City of New York,4 the New York Court of Appeals held that the municipal agency charged with landmark preservation may allow the privatization of an interior landmark that had previously been publicly accessible.5 The court’s brief opinion resolved the case on statutory grounds and did not address the underlying constitutional consideration, thereby missing an opportunity to address whether mandated public access would be an unconstitutional taking and leaving interior landmarks in an uncertain state.
The building at 346 Broadway in Manhattan housed one of the few remaining public mechanical clocks in the United States.6 In 1987, portions of the interior of the then-city-owned building, including the clock and the clocktower suite housing its machinery, were designated a landmark.7 The City of New York sold the building to a developer in 2013 and noted the landmark status in the deed.8 The following year, the developer sought to convert the building from offices into private condominiums and submitted an application to the Landmarks Preservation Commission (LPC) for a Certificate of Appropriateness (COA),9 the procedure by which an owner can “construct, reconstruct, alter or demolish” a landmarked site.10 The application included a proposal to convert the floors comprising the clocktower suite into a single luxury unit and “convert the [c]lock [itself] from mechanical to electrical.”11 The LPC then held a public hearing, during which its general counsel suggested that the Agency lacked the legal authority to mandate continued public access.12 The LPC ultimately voted to approve the COA.13
A coalition of organizations dedicated to historic preservation brought an Article 78 Proceeding14 in the New York County Supreme Court, the trial-level court, to challenge the LPC’s decision, seeking annulment of the COA, an injunction to stop any changes to the clock and maintain public access, and declaratory relief.15 The court rejected the petitioners’ procedural argument that approving the changes “was tantamount to a rescission” of the landmark designation,16 but granted the annulment of the COA on the grounds that the LPC acted without rational basis.17 The court found that the decision to eliminate public access was irrational because it undermined the statutory purpose of “protecting, enhancing and perpetuating landmarks.”18 It deferred to the LPC’s expertise in approving conversion of the clock to electrical,19 but found that the decision was based on an error of law: the LPC’s general counsel had advised that the commission lacked statutory authority to require that the clock remain mechanical, but the court disagreed that the legislature imposed this limitation on the LPC’s power.20
The Appellate Division affirmed.21 Regarding the public access issue, the majority agreed with the trial judge about the statutory purpose and found that the Landmarks Preservation and Historic Districts Law22 (Landmarks Law) “requires” interior landmarks to be publicly accessible after the initial designation.23 The court’s interpretation turned on the statutory definition of “[i]nterior landmark” as something that “is customarily open or accessible to the public,”24 reading the use of the present tense “is” as a clear indication of postdesignation status.25 The court further held that requiring continued public access would not constitute a regulatory taking under Penn Central based on the public purpose of the Landmarks Law and the reasonable beneficial use still available to the property owner.26 Regarding the regulation of the clock mechanism, the majority found that the LPC’s vote of approval was affected by an error of law because the commissioners believed they lacked authority to regulate the clock’s workings.27 Under the court’s interpretation, the statutory category “interior architectural feature” included the inner workings of the clock, especially because the mechanism was significant enough to warrant the initial landmark designation.28 Justice Kahn dissented,29 arguing “that the LPC acted rationally in issuing the COA”30 and correctly interpreted its statutory mandate.31 She further argued that, even if the LPC’s counsel had misstated the law, the hearings showed that the commissioners’ votes of approval were based on other factors.32
The Court of Appeals reversed and upheld the COA.33 Writing for the majority, Judge Garcia34 first agreed with the LPC’s interpretation that the Landmarks Law does not mandate ongoing public access for interior landmarks.35 He pointed to state precedent that identified public access as merely a “jurisdictional predicate” for designation rather than a requirement for future use.36 Judge Garcia then noted that the law allows issuance of a COA for changes as drastic as complete demolition.37 The LPC thus had a rational basis for approving the privatization of the clocktower suite.38
Second, the court found that the electrification of the clock effectuated the statutory purpose and was therefore similarly rational.39 The developer’s proposal included plans to preserve the exterior clock face, and LPC determined that the modernization of the interior mechanism would preserve it.40 The court then addressed the error of law argument and found there was insufficient evidence to sustain the charge because the Agency did not invoke the general counsel’s remarks as grounds for its decision to approve the COA.41 Judge Garcia concluded by emphasizing the “broad discretion” that the Landmarks Law conveys to the LPC and the deference owed by the court to the Agency’s judgment.42
Judge Rivera dissented.43 She argued that the alterations approved in the COA amounted to a “de facto rescission” of the building’s landmark status44 and the LPC thus failed to comply with the appropriate procedural steps.45 Judge Rivera disagreed with the statutory interpretation of the Landmarks Law and the relevant precedent, arguing that the statute’s plain language and purpose both require continued public access as a condition of an interior landmark.46 She also discussed the public policy behind the Landmarks Law, connecting the issue of access to the public’s overall welfare.47 Regarding the electrification of the clock, Judge Rivera characterized the change as “the destruction of an essential characteristic,” meaning the LPC’s issuance of the COA undermined the initial purpose of designating it a landmark and thus lacked a rational basis.48 Throughout the opinion, she stressed the cultural loss at stake in the case, putting forth the normative claim that landmarks “embody[ing] the spirit of the City should be preserved even when commercial interests seek their destruction.”49
The Court of Appeals analyzed Save America’s Clocks as a case about statutory authority and agency discretion, so it did not reach the underlying constitutional question of whether mandating public access to interior landmarks would be a taking under the Fifth Amendment. This approach is wholly consistent with the well-established principle that judges should avoid unnecessary constitutional issues and decide only the case before them. But the field of landmark preservation calls for constitutional clarity. Before Penn Central, agencies rarely enforced exterior-landmark preservation laws, in part because of profound uncertainty cast by the Takings Clause. Interior landmarks today are in a similarly uncertain position, as questions of preservation and access have never come before the Supreme Court. The facts of Save America’s Clocks — particularly the timing of the acquisition — created a potential opportunity for the Court of Appeals to work through a takings analysis and consider the public’s interest in the clock. The court’s silence on this constitutional question leaves publicly accessible interior landmarks at risk of privatization, which would remove them from the cultural fabric of New York.
The history of landmark preservation and the degree of agency enforcement have always been closely tied to constitutional considerations. The Takings Clause of the Fifth Amendment prohibits the seizure of private property for public use without “just compensation,”50 whether the seizure is through physical intrusion51 or regulatory action.52 When New York passed its Landmarks Law in 1965 and gave the LPC authority to regulate private property for the benefit of the public, it entered new legal territory — and uncertainty about the outcome of future legal challenges under the Takings Clause meant that the Agency acted with “[c]onservatism and caution.”53 The LPC had no guarantee of its own continued existence; it conducted itself with “a general awareness . . . that the Landmarks Law would be tested.”54 The eventual takings challenge came more than a decade later in Penn Central — still considered the “lodestar of regulatory takings jurisprudence”55 — which crucially affirmed that landmark preservation can be constitutional and established a balancing test that weighs the economic impact and degree of interference with the owner’s “distinct investment-backed expectations” against the public benefit of a regulation.56 It was only after Penn Central explicitly upheld landmark preservation that the LPC began to enforce its statutory mandate in earnest,57 indicating the importance of constitutional certainty to agency action.
Like exterior preservation before Penn Central, mandated access to interior landmarks exists in an uneasy state of constitutional ambiguity. The Supreme Court has never addressed interiors directly.58 New York State decisions in the immediate wake of Penn Central did not explicitly distinguish between interiors and exteriors and affirmed the LPC’s statutory authority to designate interior landmarks over the property owners’ objections,59 laying a potential groundwork for the authority to mandate access. However, the Supreme Court has repeatedly emphasized the paramount importance of an owner’s right to exclude.60 When private property is permanently or regularly physically invaded by government actors or third parties authorized by the state, such action is typically considered a taking under established jurisprudence.61 As some commentators have argued, then, the strong protections around the right to exclude would seemingly hinder any attempts by the LPC to mandate public access to private property.62 This tension helps to explain why the takings question was briefed and argued at every stage of the Save America’s Clocks litigation.63
Against the backdrop of the academic uncertainty surrounding mandated public access in theory, Save America’s Clocks presented an interesting opportunity for the court to analyze the relevant factors in practice. First, the physical takings question would have called for an assessment of ownership rights at the time of transfer.64 As the Appellate Division majority pointed out, the developer purchased 346 Broadway with notice of the interior-landmark designation,65 suggesting that the right to exclude was not necessarily included in the bundle of rights acquired by the new owner. Second, the regulatory takings question, like any balancing test, would have depended on the inputs — in this case, those inputs identified in Penn Central.66 The economic interests held by the owner depend on his investment-backed expectations, which may have been affected by the existing landmark status at the time of acquisition.67 On the other side of the scale, determining the nature of the regulation and the public’s interest in continued access is a fundamentally normative inquiry. One perspective sees a “minimal” public benefit to keeping the clocktower suite open,68 while the other, notably advanced by Professor Joseph Sax, sees a right held by the public that deserves serious recognition from courts.69
Though the Court of Appeals may have had prudent reasons for avoiding the takings issue,70 Save America’s Clocks leaves interior-landmark regulation without clear constitutional guidelines, thus imperiling designated pieces of history. Some of the most important pieces of cultural heritage exist indoors.71 Although they are not always fully open to members of the public, the public holds an interest — perhaps a kind of property right — in their continued accessibility.72 Those interests are best poised to influence regulatory outcomes under a takings analysis, which explicitly calls for a balancing approach. But, in the absence of such an analysis that might provide a clear answer, future agency action may be influenced by the characteristic “conservatism and caution” that tend to accompany the enforcement of constitutionally ambiguous laws. Landmarks that were once public and part of a collective cultural tradition will continue to become private commodities, accessible only to a privileged few.73 This, at a time when New York is becoming increasingly privatized: a public park is turning into office space;74 the last public music room is closing;75 public library land is being sold for luxury condo developments.76 Such changes alter the very nature of the city.
The horological details of the clock at 346 Broadway were a unique part of the city’s public life. The escapement design that operated to move the hands of the clock can now be found in only one tower clock in the world; any New Yorker wishing to view it will need to travel to London’s Elizabeth Tower to do so.77 Theirs is the interest that is overlooked when courts do not reach the lurking constitutional issue. More fundamentally, the current conception of property rights in the judiciary and the popular imagination fails to give adequate weight to these interests collectively held by the public, and so the public loses these battles all too often. If and when courts take up the constitutional question underlying public access to interior landmarks, they would do well to consider the full extent of the benefit to the public, in the present moment and beyond.