A preservation group failed this month in its effort to have developers reinstall the McGraw-Hill building’s art moderne lobby when a judge sided with the building owners who have already removed most of it.
New York State Supreme Court Judge Eileen Rakower dismissed a suit brought by preservationists on Friday, September 10, who wanted the owners of the McGraw-Hill Publishing Company Building at 330 West 42nd Street to restore the original 1930s-era lobby as part of their redevelopment plans.
The owners, a team headed by Deco Towers Associates and Herald Square Properties, began demolishing the lobby earlier this year after New York City’s Landmarks Preservation Commission (LPC) held a public hearing to review changes proposed for the building’s exterior.
Rakower subsequently ordered that any original architectural features removed from the lobby be preserved until the preservationists’ suit could be adjudicated, in case they won their battle to bring back the lobby to the way it was.
Founders of the preservationist group the Alliance to Save the McGraw-Hill Lobby reasoned that the lobby’s art moderne features were essentially a kit of parts made of metal panels, chrome trim, and other architectural pieces that could be reinstalled, unlike a lobby defined primarily by stone or plaster walls.
Rakower’s ruling, at the end of a 40-minute virtual hearing on Friday, means that the building owners are no longer required to save the historic materials that have been removed and may resume demolishing the lobby.
Since February, more than 4,000 people have signed a petition urging the owners to preserve the original lobby. One option for the preservationists at this point is to appeal Rakower’s decision to a higher court.
Theodore Grunewald, who founded the alliance along with Thomas Collins, declined to say what steps the group might take. Grunewald said the demolition represents a great loss to New York’s architectural heritage and he was “very disappointed” by the judge’s decision.
“This is a global loss,” he said. “The McGraw-Hill building was an absolutely unique hybrid between the International Style, Art Deco, and Streamline Moderne. The only other comparable monument is Howe and Lescaze’s PSFS building in Philadelphia, which blends International Style and Streamline Moderne. But this tower has all three.”
Grunewald said the enameled panels, steel tubes, and other architectural pieces that were salvaged from the lobby were under the judge’s protection until last week’s court hearing and could have been reinstalled, but they aren’t safe anymore.
“It puts this material in great jeopardy because [the pieces] are no longer subject to the protection of the court,” he added.
The greatest potential loss if the lobby isn’t restored, he said, is that the building will no longer have the “seamless” relationship between the exterior and interior that it had when it was completed. What was “absolutely unique” about the McGraw-Hill building, he said, was the way the building’s “bold exterior decorative vocabulary” was carried into the interior, making for a “unified architectural composition.”
As designed by Raymond Hood and Godley & Fouilhoux, the interior and exterior were “one and the same,” he said. “The lobby is the outside of the building and the outside of the building is the lobby. There’s no separation. That was part of the beauty and delight and really its significance in architectural history. There are very few buildings that do this.” If the lobby is changed permanently, he said, “you are actually depriving the public of the full experience of the exterior.”
The 35-story building was constructed for McGraw-Hill and completed in 1933 when the International Style was just getting attention in the United States. It was designated a New York City landmark in 1979.
McGraw-Hill is no longer in the building, which is now known as 330 West 42nd. DTA and Herald Square are renovating the building for new office tenants, with MdeAS Architects and Higgins Quasebarth & Partners as design consultants.
The preservationists first sounded an alarm about the lobby earlier this year, when New York City’s Landmarks Preservation Commission held a public hearing about plans to alter the building’s exterior. During that hearing on February 9, 2021, the commissioners voted 11 to 0 to approve the developer’s plans to alter storefronts and doorways at street level and make other changes to the exterior, including new signs and a canopy.
When the commissioners opened the February meeting to public testimony, Grunewald and other preservationists raised questions about plans for the building’s lobby, saying they believed it should be preserved. Representatives for the design team said they want to keep some original features while adding new elements to create a blend of old and new that meets today’s tenancy requirements.
After hearing public testimony about the lobby, several commissioners said they appreciated the “seamless” nature of the design but noted that the application before them was to consider changes proposed for the exterior, not the interior. They said the building’s exterior is protected by landmark status, which gives the commission authority to review and approve plans for the exterior, but the lobby was not separately protected by local interior landmark status and as a result, they didn’t have the legal authority to review plans for the lobby.
In the court hearing on Friday the Alliance’s attorney, Jack Lester, argued that the commission did have authority to review and approve plans for the lobby because it was listed on the National Register of Historic Places in 1989, giving it both state and federal landmark status.
Lester argued the preservation commission’s charge is to consider the “special character” or historical value of landmark buildings and the effect that any proposed changes would have on them, and that the panel wasn’t restricted to looking only at interiors that have been given landmark status by the New York City government.
An attorney for the developers, Jeffrey Braun, said it doesn’t work that way. He argued that the commission has the legal authority to review changes proposed for the building’s exterior because it has been designated an individual city landmark by New York City, but not the lobby, because New York City hasn’t singled out the building’s interior for landmark protection.
Braun said the application reviewed on February 9 only involved work on the building’s exterior because that’s what the commission has authority to review. He said the preservationists’ suit “is really a gimmick to try to bootstrap the approval of the exterior work into a claim that the landmarks commission should not have allowed interior work on the building’s lobby and that just doesn’t add up… There’s just absolutely no merit to this case as a matter of law.”
The preservation alliance “is complaining about the landmarks commission’s failure to address issues that are outside its jurisdiction,” Braun added. “It really does go to the question of jurisdiction.”
In addition, he said, “the designations on the state and national registers of historic places have no bearing on the powers of the landmarks commission. They exist under entirely separate statutory schemes.”
City attorney Jasmine Paul pointed out that the LPC conducted a staff-level review of plans for altering the lobby in September of 2020 and issued a “certificate of no effect” that permitted the demolition of the original interior.
“If petitioners had issue with the lobby work or believed that the lobby work or the approval of the lobby work was unlawful, then they should have challenged the September 24, 2020, determination, not the decision made on February 9, 2021,” Paul said.
Paul agreed with Braun that the commission only has the legal authority to make decisions about proposals involving portions of a building that have landmark designation from New York City.
“The law is clear that the commission only has jurisdiction over the portions of buildings that are landmarked,” she said. “Here, the only portion of the McGraw-Hill building that is landmarked by the commission is the exterior of the building and the application was solely for the exterior of the building.”
In her ruling, Rakower pointed to the staff-level decision in 2020 to approve a separate “certificate of no effect” that allowed the development team to demolish the original lobby.
She said the preservationists should have raised objections to that decision when it was made in 2020, rather than challenge the February 2021 decision involving exterior changes. If the Alliance filed its suit to address the 2020 decision concerning the lobby work, she said. “it would be untimely and not within the statute of limitations.” The judge also noted that the preservation agency had received a request in 2015 to give the McGraw-Hill lobby interior landmark status but decided not to do so because it had been altered—a decision also made at the staff level rather than by the full commission.
“It was the decision of the landmarks preservation commission,” Rakower said, “that too many changes had been made, that the original building from the 1930s had been changed extensively on the interior in the 1980s and such interior landmark designation was just not feasible and they chose not to landmark it.”
Rakower said that the 2015 decision not to give the lobby landmark protection would have been an appropriate point for preservationists to take action but “nobody appealed that, nobody challenged that, nobody did anything with that.” As a result, she said, she can only base her decision on what the commission has the legal authority to review: “I have a very narrow role here.”
Grunewald said after the court hearing that the larger preservation community never had a chance to argue for landmark designation of the lobby because the decision was made at the staff level and no public hearing was held. He said the main reason for the staff’s decision to deny interior landmark status was because a different ceiling was added in 1980, but he noted the rest of the lobby from the 1930s was intact and in excellent condition.
Lester, the attorney for the Alliance, told the judge that the commission’s review of the exterior changes on February 9 was the first time the preservationists had a chance to comment at a public hearing about plans for the building, and that’s why they sued when they did.
“It was really the only opportunity the petitioners had,” he said.
The preservationists may have another chance. Rakower said that the proper time to file a suit about a commission’s action is after it issues a Certificate of Appropriateness for the work it reviews. Although the McGraw-Hill hearing was held on February 9 and the panel voted to approve the proposed changes that day, officials say, its decision is contingent on the developer submitting for “final determination” follow-up documents reflecting design revisions suggested at the meeting.
According to Paul, the agency is still waiting for a set of revised drawings and has not yet issued its Certificate of Appropriateness, meaning the case is not yet “ripe” for a legal challenge. After the commission issues its Certificate of Appropriateness, she said, would typically be the right time to file a legal challenge.
One of the issues raised by the McGraw-Hill case, Grunewald said, is the need for more clarity and transparency about what decisions are made at the staff level and what decisions are brought to the full commission for review.
When decisions are made at the staff level, he said, preservationists often don’t know about them right away, and when they do find out and try to weigh in, the courts say they’re too late. The result can be a Catch-22 situation that leaves preservationists and the general public unable to adequately monitor what developers do—and what the city permits.
Grunewald said he can understand why certain LPC decisions are made at the staff level rather than brought to the full commission. But he also believes the decisions involving the McGraw-Hill building’s interior should have been made by the full commission because of the building’s significance, and wonders what other key decisions are being made at the staff level that perhaps ought to be made by the full commission.
“The staff-level decisions have gotten out of hand,” he said. “We’re not talking about a townhouse in Brooklyn with a door color that is being changed. We’re talking about a monument of world architecture, the McGraw-Hill building.”
“Not only was there no public hearing, there was no public notice. No one would know. That’s the problem… All those staff-level decisions are decisions that have shut out the public.”