Arsteca.net
 
<< Home

Preservation Law Wrongly Interpreted

Law was misconstrued as subordinate to zoning law.

February 26, 2008

Letter to Syracuse common councilors:

The Syracuse Landmark Preservation Board, the Syracuse Planning Board, and the Common Council have voted either unanimously or overwhelmingly in favor of granting preservation protection to the Kingsley True House at 1100 E. Genesee St. And yet, the new property owner, Ronald McDonald House (RMH), presumes the legal right to demolish the building. This is because it's lawyer claims that an obscure rule in the zoning statute requires that, in the case where an owner formally contests a zoning change to his/her property, a minimum 3/4 majority vote by the city council is required to pass the ordinance. Monday's vote passed with "only" 2/3 majority.

The rule is not obscure; it's quite prominent in the statute. The unwarranted suggestion of obscurity probably helped to mislead and distract city officials in their review and interpretation the law. In the past, the assignment of preservation status has not been construed as a form of zoning change. That got my attention. And there lies the RMH lawyer's trick: equating assigning preservation status with a zoning change; conflating one law as part of another. The zoning law and the preservation law are two completely distinct laws, two distinct authorities. The zoning law rule is not applicable to this case.

According to New York State Law and a NY Dept. of State legal memo, there are two legal approaches to protect properties of architectural, historical, or cultural significance: 1) through the authority of the zoning law; and 2) through the authority of the Landmark Preservation Law.

Syracuse has a Landmark Preservation ordinance in effect, and it is through its authority that preservation protection recommendations are made. The Landmark Preservation Board (LPB) is specifically not granted the authorities granted under the zoning ordinance. So, its actions cannot be construed as zoning changes. The authority of the LPB is limited, in essence, to refusing a demolition permit and to restricting certain changes of appearance of a property.

Moreover the NYS legal memo states that the Preservation law "differs from zoning because its purpose is not the regulation of land uses, per se, but protection of a community's historic resources, even, in limited circumstances, the interior of buildings. Where both zoning and landmark laws apply, the applicant must comply with both."

I urge the city legal advisors to review the law once again, and urge the city to halt any demolition authorization until the issue is unambiguously clarified. Acting against the preservation board, planning board, and city council resolution would be an unlawful act.

Note: Letter as sent to Post-Standard editor. Was not published.