Historic Preservation Hangs in the Balance

The fate of a mid-century modern home at 76 Birchall Drive owned by the Milstein family, hangs in the balance again. As previously reported, the Committee for Historic Preservation held three meetings earlier in the year to consider an application filed by the family’s attorney to take down the now vacant 7,000 square foot home on over 3 acres --and ultimately voted to deny it at their September 20, 2022 meeting.

Now the Milstein’s lawyers are appealing this decision to the Scarsdale Board of Trustees and have called in attorney Lucia Chiocchio from Cuddy and Feder who has been successful in the past in winning appeals to demolish historic homes in Scarsdale.

If successful, local developer Bobby Ben Simon plans to take down the ranch and pool house, subdivide the property and build two MacMansions in its place. In fact, earlier in the year, before the application was denied or a subdivision was approved, Ben Simon advertised a 9,200 square foot home for $8.75 million at “78 Birchall Drive,” an address that does not exist on the Scarsdale map.

The application was only narrowly denied by the committee as two of the seven members were absent and the approval would have required four votes. At the September 20 meeting, board members Jonathan Lerner and Talaiya Safdar voted to deny the demolition, and Adam Lindenbaum, Kevin Reed and Wendy Goldstein votes to approve it. However, the absent members, Lauren Bender and Mark Behr both indicated that they were against the demolition though they were not given the opportunity to vote remotely. If they had, the vote would have been four against demolition to three in favor, which would have been a more decisive outcome from the committee.

At the three meetings of the Committee for Historic Preservation, a group of neighbors presented substantial evidence to support the preservation of the house, including the determination that the architect, Simon Zelnick, was a master due to his renown architectural work, his accolades, and his status as a Fellow of the American Institute of Architects. CHP members who voted to deny the application maintain that Zelnick is indeed a master.

Committee members who voted to deny the application believe the home satisfies the criteria in the preamble of the historic preservation code which considers the homes “level of significance in American history, architecture, archelogy, engineering and culture present in the building as well as the integrity of location, design, setting, materials and workmanship.” They supported the criteria that the home “embodies the distinctive characteristics of a type of construction, mid-century modern, that possesses high artistic value."

They found that “76 Birchall Drive occupies almost 3 acres of this iconic street and is very much required to remain standing in order to maintain the integrity of its location, the design and setting of this neighborhood.” Further supporting their claims was the materials and workmanship, and that the home is one of the few remaining mid-century modern homes in Scarsdale.

On the subject of property rights, committee members who voted against the application said when weighing, “property owner’s rights against the need for historical preservation,” those who voted in favor of the application gave “more weight to the positions of the nonresident property owners over the position of the six neighboring property owners and residents speaking in favor of the denial of the application because of the potential adverse effect that an approved petition would have on the neighborhood and their property values.”

Those who voted to approve the application argued it did not meet the criteria in the preamble, that Zelnick was not a master and that the home was not mentioned in Professor Dolkart’s 2012 Reconnaissance Survey of Scarsdale. The also argued that repairs and renovations to the house diminished the original design.

About Zelnick they argue that he is not a master, saying, though “his status as an AIA Fellow is rare and impressive, his achievements did not rise to the level of “generally recognized” greatness,’ and though he was noted for his design of a synagogue in Riverdale, the Joyce Theater and Barracini Candy stores, he was “a jack of all trades,” and not well known for his mid-century modern homes.

They also contend that the homes does not possess high artistic value and should not be saved “simply because it is rare and among the best of what Scarsdale has to offer within this architectural style.”

Read the memo from the committee and the appeal from the attorney here:

The next step for the applicant is an appeal before the Scarsdale Board of Trustees, which was originally scheduled for Monday night December 12, 2022, but was postponed. At that hearing, the attorney for the Milsteins will make their case and members of the Committee for Historic Preservation can speak and present their case for and against. Though the neighbors supplied much of the evidence to defend the home, the Village attorney says that the public will not have an opportunity to comment at the hearing, making it a one-sided appeal. It should be noted that there is nothing in Village Code which bars the public from commenting at the hearing.

This case again tests the limits of Scarsdale’s Historic Preservation code which is meeting an increasing number of challenges from developers who wish to exploit the landscape for their enrichment. Between the subjective nature of the historic preservation code, the mixed resolve of members of the Committee for Historic Preservation and Village Trustees and deep pockets of landowners and builders, preserving Scarsdale’s historic homes is problematic, to say the least.