State Supreme Court Denies Milstein's Appeal to Tear Down Historic Midcentury Modern Home

Here’s some more interesting news for those advocating for preservation in Scarsdale. Last week, the Committee for Historic Preservation denied an application to demolish a treasured home in “The Woods” section of Scarsdale, following an organized campaign from neighbors.

This week we learned that another home will be spared. In a ruling from the Westchester County Supreme Court, Judge Robert A. Neary upheld a decision by the Scarsdale Board of Trustees to deny an application to take down a mid-century modern home at 76 Birchall Drive. The homeowner, Howard Milstien planned to demolish the home, subdivide the property and build two new homes on the site.

After both the Committee for Historic Preservation and the Scarsdale Board of Trustees found that the home met the criteria for preservation, the owner, Howard Milstein of PIM Holding Company filed an Article 78 in State Supreme Court to appeal the ruling “on the grounds that the administrative decision was made in violation of lawful procedure; affected by an error of law; or arbitrary and capricious or an abuse of discretion.”

Milstein’s attorney, Troy D. Lipp of Cuddy and Feder contended that the Village's Historic Preservation Law “is unconstitutionally vague and overboard under the federal and state constitutions.” The Village of Scarsdale was represented by Nicholas M. Ward-Willis and Carina P. Zupa of Kean & Beane.

The decision says, “The Scarsdale Board of Trustees determined that the Petitioner- Plaintiff’s residence is "uniquely" historically significant in that it is a classic example of the mid-century modern movement and has retained its integrity despite the substantial record evidence confirming the significant changes and alterations to the residence and conclusions of the Village's own expert that the residence no longer possess integrity of its original design and, therefore, does not satisfy the Village's criteria for historic preservation.”

“The Board of Trustees additionally found that the residence is worthy of preservation because (architect) Zelnik was a master, and the residence is the work of a master, citing Zelnik's achievements and the letter in support of preservation from the President of the Bronx Chapter of AlA.”

Furthermore “The Board of Trustees engaged in the required balancing test and considered the relevant statutory factors, and their determination is supported by evidence in the record.”

The court said, “In the instant case, the Court finds that the BOT's determination to deny the appeal of the CHP's decision to deny a COA had a rational basis and was not illegal, arbitrary, and capricious or an abuse of discretion.”

“The Court finds that in the present case contrary to the Petitioner-Plaintiff s contention, the HPL (historic preservation law) is not unconstitutionally vague. The fact that different parties may disagree on the significance of certain statutory language does not indicate that the statute is unconstitutionally vague.”

“Therefore, based on the foregoing, the Petition is denied, and the matter is dismissed.”

The application was the subject of many meetings and neighbors amassed significant evidence to support a denial of the application. The architect’s grandson, Bryan Zelnik played a role in defending his grandfather’s legacy.

Bryan Zelnik, who is also an architect said, “I was happy to hear the news that the Supreme Court Judge decided to agree with the Trustees and the judge denied the petition and dismissed the case. This decision allows 76 Birchall Drive by Simon B. Zelnik FAIA to remain in Scarsdale's architectural history. The Dolkart report should be amended to include Simon B. Zelnik FAIA and his 76 Birchall Drive house as the first modern architect and the second Midcentury house in Scarsdale's modern history. The modern first house in Scarsdale was the 1948 Barricini House that Zelnik also designed and placed on the national stage where it belonged in the 1948 Architectural Forum article i uncovered in my research online.”

He continued, “I had several thoughts about the Supreme Court case decided by Justice Robert A. Avery. The judge acknowledged and cited my grandfather's achievements including his earned fellowships from the AIA in Design and Education along with importance of the 1948 Arch Forum Article I presented as documentary evidence to the CHP. The 1948 article the Judge highlights as one of Zelnik's achievements is "the feature of Simon Zelnik in the 1948 Architectural Forum issue that highlighted his forward thinking "modern luxury" architectural designs." It can be argued that Zelnik's Barricini house led to the future of modern residential luxury architecture and one of the first in the country.”

“I also wanted to note the recent article "Residents to Present Petition Calling for a Moratorium on Tear Downs and Subdivisions to Village Trustees" as a positive direction for the village. I hope that the preservation of 76 Birchall inspired this group to create a "mandate for change" and wish them luck in achieving their resolution. As an architect, I am a strong advocate for preserving the past if it satisfies the village code's criteria and documentary evidence is provided and not just consulting opinions against it.”

The issue was even covered in the Wall Street Journal in an article that sought to cast doubt on the status of Zelnik in the world of architecture. The piece, said, “You’d be forgiven for not knowing the name of Simon B. Zelnik, a respected-but-not-celebrity New York architect who died in 1980.” However, the article did not sway Judge Neary.

The ruling comes at a pivotal time for Scarsdale. After many homes have been torn down, properties subdivided and two oversized homes replacing one, some neighbors have had enough. A group has amassed over 300 signatures on a petition calling for a six-month moratorium on tear downs and subdivisions.

However, aggressive developers and homeowners continue to tear apart neighborhoods.

At the next meeting of the Committee for Historic Preservation on Tuesday November 14 at 7 pm, applications will be considered to tear down four more homes.

They are:Since the BAR denied an application to add a front facing garage and expand the footprint of 23 Autenrieth Road, the homeowner has now applied to tear down the home, built in 1911.

1) 46 Lincoln Road – Demo house built in 1954
2) 20 Carthage Lane – Demo house built in 1954
3) 23 Autenrieth Road – Demo house and detached garage built in 1911
4) 9 Ogden Rd – Demo house and detached garage built in 1952

Will the Scarsdale Board of Trustees act quickly enough to save these homes and bar the subdivisions which are often the next step?