This post was updated December 21, 2018, to clarify two details. Firstly, the assistant corporation counsel, who provides legal counsel to the city’s commissions and boards, insisted to the Commission that the transcript of the final hearing would be sufficient for explaining the rationale of the Commission’s decision in lieu of a thorough written decision. Secondly, frequent intrusions in the commission’s final deliberations were made by the applicant and their lawyer and not other members of the public.
“The purpose...is to provide for the promotion of the educational, cultural, economic and general welfare of the public through the protection, enhancement, perpetuation and preservation of landmarks and Landmark Districts. The legislative body declares that it is in the public interest to ensure that the distinctive landmarks and Landmark District shall not be injuriously affected, that the value to the community of those buildings having architectural and historical worth shall not be impaired and that said districts be maintained and preserved to promote their use of the education, pleasure and welfare of the citizens of the City of Kingston and others.” Legislative Intent of the Historic Landmarks Preservation Commission, City of Kingston Administrative Code §405-63
By Marissa Marvelli
Following established procedures is key to any review by a quasi-judicial commission or board. Any misstep, big or small, can result in a judge rejecting its decision on appeal. This is precisely what has happened with the decision of Kingston’s Historic Landmarks Preservation Commission (HLPC) to deny the Irish Cultural Center (ICC) a “preservation notice of action” for their proposed new building in the Rondout Historic District. In her ruling, the Honorable Lisa Fisher of the State Supreme Court correctly notes how the members of the HLPC failed to render a clear written decision that contains specific references to the zoning code. Without that in hand, she, like Kingston’s Zoning Board of Appeals (ZBA), was left to parse the transcript of the hearing, which she accurately describes as “erratic.”
The HLPC failed in its review of the ICC—not on principle but on procedure. The final written decision of the HLPC is inadequate in describing the Commission’s reasons for its denying approval for the ICC. No member of the Commission was directly involved in the composition of the written decision, a concern that was raised by members in the weeks following the final hearing. In response, the assistant corporation counsel for the City of Kingston, who provides legal counsel to the city’s boards and commissions, insisted that the transcript would be sufficient for conveying the commission’s rationale. That transcript, which by default became the primary record of the hearing, documents a circuitous deliberation by Commissioners with frequent intrusions by the applicant and their lawyer. The record further reveals the difficulty that Commissioners had in interpreting the criteria for review as outlined in the code, because the language is too vague and weighted towards the consideration of changes to individual buildings rather than new construction in historic districts. In this light, it is not difficult to see why the ZBA and this judge concluded that the HLPC’s decision was “arbitrary and capricious.”
One of the fundamental duties of the HLPC when reviewing proposed changes in a historic district is to ensure that the character of the historic district is maintained, and “prevent construction, reconstruction, alteration or demolition out of harmony with existing buildings insofar as character, material, color, line and detail are concerned, and thus to prevent degeneration of property, to safeguard public health, promote safety and preserve the beauty of the character of the landmark or Landmark District.” (City of Kingston Administrative Code §405-64 D)
No single detail defines a historic district’s character. It is the multitude of details taken together that creates a distinctive environment and sense of place. Such character-defining qualities include the relationships of buildings to each other and to the street. Do the buildings form a continuous streetwall or are they spaced apart? Are they situated directly at the street or are they set back from it? What was the historical development trend that led to their existence? Is there a discernible rhythm or pattern of details, be it building sizes, roof massing, cornices, or windows? Many districts have multiple rhythms. Character is also defined by the type of buildings, their construction, and scale—the architecture of a single-family dwelling is different than that of a store-and-loft building in terms of massing, façade proportion, materiality, fenestration, and building features like porches and storefronts.
The qualities described above are aesthetic ones. It is incumbent on members of the HLPC to consider all of them when considering the appropriateness of new construction in a historic district, be it an addition to an existing structure or a wholly new building on a vacant site.
“All applications shall be considered by the Commission on at least the following points, these points to be used as a basis, where relevant, for establishing relationships to the external features of buildings in the immediate neighborhood: The building height in relation to surrounding buildings; the relationship to nearby roof shapes; the relationship between the width to height of the front elevation; the size, proportion and spacing of openings within the facade and elevations exposed to view; the rhythm of spacing of buildings and building elements on the street; the design and placement of entrances and projections; the relationships of materials, textures and colors; the relationship of architectural details; the continuity of walls; the relationship of landscape elements; the appropriateness of paving; and the effect on existing or historically significant spaces.” (City of Kingston Administrative Code §405-64 C)
It has been wrongly assumed by city administration officials as well as the applicant’s lawyer that the HLPC has no grounds for considering scale, height, or siting of new construction in a historic because they are zoning matters. It is within the HLPC’s purview to consider these details so long as they are discussed in relation to the physical context of the district. In fact, the statutory purpose of historic districts would be illusory if the HLPC did not consider such basic aesthetic qualities as scale and massing. Further, Kingston’s administrative code allows the HLPC to issue “determinations that are more restrictive than those prescribed or made by or pursuant to other provisions of law applicable to such activities, work or use.” (see Powers and Duties of the HLPC,§405-61.)
“Historic preservation ordinances have been upheld, both ‘facially’ and ‘as applied,’ so long as procedural safeguards have been enacted to control a preservation commission’s discretion and so long as the meaning of general criteria and standards is discernible from the facts and circumstances. For example, a requirement that any new construction in a historic district be consistent in scale and design with existing historic structures should be able to withstand constitutional attack since that requirement will not be considered in a vacuum but rather in the context of nearby properties and the character of the district as a whole.” A Layperson’s Guide to Historic Preservation Law by Julia H. Miller (National Trust for Historic Preservation)
It is not often that the HLPC is tasked with considering the appropriateness of a whole new building in a historic district. Indeed, it is difficult to recall the last time such an application was heard, nevermind one as significant in scale and visibility as that of the ICC. Few aspects of the proposal were straight-forward. For one, it has two primary façades (building fronts); one which faces a block of Abeel Street that is residential in character and another that faces onto the commercial West Strand while not being at the level of the Strand or the waterfront. Instead, it is situated at a higher elevation along Company Hill Path. The path—itself an important contributing resource in the district—historically ran uninterrupted from the Strand to the Delaware & Hudson Company’s Paymaster Building, which once sat at the top of the bluff. There is also the issue of scale, which in the code is described as “the relationship between the width to height of the front elevation.” The building’s elevation on Company Hill Path is three stories tall and 83 feet wide, a substantial frontage for a building that is not situated directly on the waterfront and which will no doubt compete visually with the iconic ensemble of Italianate buildings on the West Strand. In fact, during one of the hearings, the applicant boasted how the new building will be a magnet for attention along the waterfront. Successful new buildings are reverential to their context. They should reflect the qualities of the context that is being protected while also enhancing people’s understanding of it.
All that said, most decisions made by the HLPC are largely subjective because aesthetics are subjective. Few would contest a finding that Italianate details are not appropriate for a Greek Revival portico. Other decisions are not so clear-cut, which is why it is imperative to follow the procedure and deliver findings of fact that are clear and specific. During their deliberations in the final hearing of the ICC, the record does not show that members of the HLPC consistently tied their findings to the relationship of the proposed building to its context. Some statements appear as if members were considering bulk requirements in isolation. Commissioners should have taken greater care to frame their statements and reference the code—during their deliberations and in the final written statement—to help future appeal bodies understand the HLPC’s rationale. It should not be the responsibility of an appeal body to determine the appropriateness of a particular project all over again. Instead, it should verify that the HLPC’s finding of facts and written record support the decision rendered and no foul play occurred.
Commissioners are volunteer citizens with a passion for preserving the city’s landmarks and historic districts; they are not legal experts. Their service is only as good as the process and administration that supports them. It is next to impossible for anyone, expert or not, to render cogent, legally-defensible decisions in a chaotic environment where people are speaking out of order and members of the HLPC are forced to repeat their findings more than what the procedure calls for, hence the “erratic discussions” noted by Judge Fisher. That final hearing, held on the 27th of September 2017, was the culmination of two earlier hearings in which a decision was not reached. Tensions were extraordinarily high.
In the months since then, the members of the HLPC have focused on making improvements. They have adopted a new template for running orderly meetings. Much greater care is now taken to making findings of fact and preparing the final written decision. A member of the HLPC helps first-time applicants prepare for appearing before the Commission—a task that will be assumed by the to-be-hired preservation staff person. This past April all but one of the seven current members attended a full-day workshop in Albany for preservation commissioners that was very instructive. Most significantly, the HLPC has drafted an improved preservation ordinance that is currently being considered by the Common Council’s Laws & Rules Committee. The ordinance is largely based on the 2014 New York State Model Preservation Law. Its concise and clear language will improve the comprehension of the law for everyone.
In the end, the HLPC is the goalkeeper of Kingston’s extraordinary built heritage. When buildings are lost or new construction upsets the balance, it means the (wrecking) ball got past not just the goalkeeper but the entire team.
Marissa Marvelli has served on the Kingston’s Historic Landmarks Preservation Commission since September 2016.