Closing a Loophole in Our Historic Preservation Law

In late October, residents were aghast to find that a developer had razed a significant portion of a historic home on Hampton Road in Scarsdale. The Committee for Historic Preservation had considered whether or not the home warranted preservation during the summer and an opinion from architectural historian Andrew Dolkart confirmed that it met several of the criteria for preservation.

But before the committee had the opportunity to vote, the developer who had purchased the property, filed a simultaneous application with the Board of Architectural Review to demolish what he claimed was 49% of the house. With approval from the BAR, the developer quickly took down half the house, the stone entry and all the stucco and brick on the remaining exterior, leaving a shell of the former home.

After this incident, trustees realized there was a gap in the building code that allowed the builder to “shop” his plans to several land use boards simultaneously, in an effort to get the answer he wanted.

After conferring with the Village Attorney, Dan Pozin, trustees are now considering an amendment to the building code to change the procedure for gaining approval for additions and alterations of homes built prior to January 1, 1940 that “substantially change the exterior character and appearance of the building.” For these properties, the applicant would need to also gain the approval of the Committee for Historic Preservation in addition to the Board of Architectural Review.

The intent of the code change is to close a gap or loophole between Village land use boards that allow applicants to gain approval for altering historic structures without approval of the Committee for Historic Preservation.

Trustees considered this potential code change at a work session on February 1, 2022. Both the Chair of the Board of Architectural Review and the Committee for Historic Preservation were present as well as Frank Diodati from the Scarsdale Building Department.

Discussing the need for this stop gap provision, Trustee Justin Arest said, “Historic preservation is much more complicated – we have been talking about it for years. The problem is that once these assets are gone, they are gone. This should not be overly burdensome to residents. We want to hear from everyone.”

He then raised the question of penalties or fines for those who violate the law. He said, “There is a fine for violating our laws – but some developers look at it as a cost of doing business. That needs to be addressed. I would propose that if a builder violates the code they will be required to build back what they demolished.”

Trustee Randall Whitestone expressed his support for preservation, saying, “A systematic classification of properties would be the best way to go about this.”

Trustee Jonathan Lewis also wanted to do more to preserve historic homes in the Village. He said, “I think we need to move forward though this is a modest way to close unintentional loopholes. We have not discussed the broader question of what tools are available to preserve the historic value, character and beauty of Scarsdale. Preservation is much more than a cutoff date. Contextual zoning, landscaping, the setting … the treescape. I am for this acknowledging that this is limited.”

He asked how many homes in the Village were built before this cutoff date and was told that 49% of homes in Scarsdale Village were built before 1940. Lewis asked Village Planner Greg Cutler to inform the Board about their options for preservation and Cutler recommended that the Village retain an expert who focuses on preservation to inform them.

Village Manager Rob Cole said, “I worked in Oak Park Ill. where there are many Frank Lloyd Wright homes. I will circulate a booklet of guidelines that will clarify terminology. It is complex but there are interim measures we can take to preserve assets that may be at risk.

The trustees then asked the two committee chairs if this proposal was practical. CHP Chair Adam Lindenbaum said, “I have been running the CHP for three years. A penalty and the provision to require the builder to build back what he destroyed would be important.” He said, “We also want to still have the power to evaluate homes that are built after 1940. We have preserved mid-century modern homes. I would argue that we should be able to see any demolition – as the façade can be so important. We need to be able to examine the character – and not just the square footage. Perhaps the BAR should be the lead agency.”

Brad Citron who heads the Board of Architectural Review said, “When an applicant comes to us it is after a subjective decision from the Village. At 41 Hampton – we decided we could live with the proposed renovation. What you need to do is provide the CHP with a way to weigh in for demolitions of less than 50%. This can only make the BAR and CHP workload more substantial. But this is a way for the CHP to weigh in earlier.”

Frank Diodati who heads the Scarsdale Building Department said, “ We have to think about how we submit the applications to the two boards. This could take several months. The BAR meets twice a month and considers 18 applications at each meeting and the agendas are often full. We could create a workload issue for the CHP – who only meets once per month.”

Lindenbaum said, “We vote 7-0 90% of the time. We get our work done quickly – I don’t think this would be an undue burden.”

Trustee Karen Brew said, “For those who demolish without permission, can we implement a process where 2 or 3 strikes and you’re out for multiple abuses.? You lose the right to work in our Village?”

Mayor Jane Veron suggest, “Should we do another draft that includes deterrents?

Jonathan Lewis said, “Let’s move forward with this stop gap measure while we look into larger solutions. Might we consider a moratorium until we can change this law to deter people from acting rashly if they think the law will be changed?”

At the conclusion of the meeting the Mayor asked the attorney to look into adding penalties, requested that the chairs of the BAR and CHP discuss process and following that, asked for the code change be put back on the calendar.

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