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Commentary By Josh Barro

Conservatives for a More Capricious Landmarks Bureaucracy

Cities, Cities New York City

One bizarre aspect of the controversy regarding the Cordoba House development near Ground Zero is how many conservatives have fallen in behind the idea of an unelected body v New York’s Landmarks Preservation Commission — using its powers to prevent a private property owner from tearing down a building on his own property.

As Dan Foster described this morning, the Commission declined bestow landmark status on the Italian Renaissance-style loft retail building at 45 Park Place — the consensus seems to be that the building is architecturally unremarkable, despite its age. Such a designation would have prevented the mosque’s developers from altering the building’s façade, adding a roadblock for the project.

The trouble with landmarking is that it interferes with private property rights — the government decides that a property is deserving of protection, but the cost of preservation (both in maintenance and opportunity cost) falls on the property owner. It is, essentially, an uncompensated taking. Conservatives are usually opposed to uncompensated takings of property, but perhaps an exception applies when the property owner is a Muslim?

In addition to philosophical concerns, landmarking on a large scale can impede the construction of new housing to meet demand, driving up housing costs. The LPC doesn’t just have the power to landmark individual buildings, but can also recommend the creation of historic districts that add development restrictions on whole swathes of buildings. Landmarking binges in the 1970s and during the Dinkins administration have led to 16 percent of Manhattan below 96th street falling within a landmark district.

My Manhattan Institute colleague Ed Glaeser wrote a piece for the Spring 2010 issue of City Journal, detailing the costs imposed by the creation of all these districts. From 1991 to 2002, historic designations appear to have added several hundred dollars per square foot to housing prices in certain districts of Manhattan, making the borough more unaffordable and less diverse.

In addition, many of the restrictions imposed by historic districts are of dubious preservative value. Glaeser describes a case in 1999 where the existence of a landmark district prevented a developer from razing a single-story Citibank branch at the corner of 91st & Madison to build a 17-story tower. The bank itself was non-historic, yet the LPC, lobbied by neighbors including Woody Allen and Kevin Kline, only let the developer build nine stories. (For non-Manhattanite readers, high-rise buildings are thick on the ground in the vicinity of 91st & Madison.)

So, I’m disappointed to see Republican politicians urging the LPC to use its powers more aggressively. Instead, they should be trying to constrain the powers of the LPC and protect the rights of property owners. Glaeser does note that Mayors Giuliani and Bloomberg appointed LPC members who use their powers much more sparingly than before, but this isn’t a substitute for reform that reduces the Commission’s power permanently — for example by limiting its mandate to the preservation of individual structures and barring the creation or expansion of historic districts.

This piece originally appeared in National Review Online

This piece originally appeared in National Review Online