NYREJ Publishes Article by Thomas Kearns on Latest Hardship Filings by Landmarked Church: Olshan Actual Property Regulation Weblog

NYREJ Publishes Article by Thomas Kearns on Latest Hardship Filings by Landmarked Church

New York Actual Estate Journal printed an article on July 26 authored by Olshan Actual Property associate Thomas Kearns entitled “Landmarked church buildings need assistance” (by subscription). 

The current hardship submitting by the landmarked Park-West Church has highlighted the difficulties confronted by landmarked church buildings. In accordance with information tales, the Park-West congregation has diminished, and the church wants thousands and thousands for repairs to maintain it protected. New York regulation provides homeowners of landmarked not-for-profit buildings a proper to ask to demolish the constructing attributable to hardship. Whereas a number of hardship functions have been granted, maybe essentially the most well-known hardship utility, for St. Bart’s on Park Ave. in Manhattan, was denied.

The regulation governing air rights tries to assist landmarked buildings keep their viability by granting the appropriate to promote air rights throughout the road. Usually solely instantly adjoining websites are eligible to obtain air rights. We do plenty of air rights transactions for our purchasers and we requested one of many consultants we often work with to try the Park-West space, and he discovered that there have been no apparent websites that might use Park-West’s air rights. Whereas air rights bought from one other lot could make a constructing taller, there are numerous zoning restrictions that restrict the place air rights can be utilized.

The proposed purchaser’s plan for Park-West includes a full demolition. The Landmarks Preservation Fee may deny the hardship utility and would possibly have the ability to power a sale to a purchaser who would agree to make use of the constructing as is. Town may additionally have the ability to condemn the constructing and pay honest worth for it, however that’s costly and, when inexpensive housing, psychological well being and different price range calls for are so intensive, is that the appropriate use of metropolis tax {dollars}?

A denial of the Park-West hardship utility will little doubt carry a court docket problem. I’ve learn the main New York court docket selections and they aren’t simple to research however, with St. Bart’s resolution as a current instance, New York courts could uphold a call by the Fee to disclaim the applying. One other consideration is the Takings Clause of the Fifth Modification to the U.S. structure. The U.S. Supreme Court docket’s takings jurisprudence has been evolving extra favorably towards landowners over the a long time for the reason that landmarks regulation was handed within the 1970’s.

As a coverage matter, how ought to we assist landmarked church buildings? One little identified mechanism was adopted to assist landmarked Broadway theaters—the creation of a particular district working from 40th to 57th Sts. and 6th to eightth Aves. through which the theaters may promote air rights, thereby opening a a lot bigger pool of air rights patrons. By most accounts that statutory change labored, giving the homeowners of the theaters the flexibility to monetize their property and lowering the hardship for sustaining the theaters. Maybe an analogous mechanism might be created for landmarked church buildings and paired with an inexpensive housing element or different restrictions may relieve the hardship that many landmarked church buildings are dealing with.

The Park-West constructing is gorgeous. To lose it might be important. However given statutory and constitutional points, we must always take into account as a society the right way to assist church buildings and different not-for- earnings hold their buildings maintained.

Thomas Kearns is a associate with Olshan Frome Wolosky LLP, New York, N.Y

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