Preservation
Third Church demolition order requires church to stay
Yesterday, Office of Planning Director Harriet Tregoning, acting as the Mayor's Agent in the Third Church of Christ, Scientist case, gave the church permission to replace their Brutalist building with a new structure. The widely-expected decision should now make dangerous First Amendment litigation moot. But it also contains several conditions that should also forestall some of the worst scenarios that preservationists feared.
Photo by rodeomilano.
The owner of a landmark may only appeal to the Mayor's Agent for certain reasons. One is that the city's denial of the raze permit would cause "unreasonable economic hardship." Another is to construct "a project special merit." The Church had initially filed under both criteria, but at the hearing, they dropped the "special merit" claim when the DC Preservation League pointed out that the Church had never submitted sketches, plans, or any other description of the building they'd like to construct.
Why haven't they? If the Church could design a really great building to replace this one, it might increase support for razing the current structure. However, it's likely that they simply can't afford to pay for architectural work without knowing whether they can build it. But some preservationists worried that the Church might actually be concealing its true plans. What if, instead of wanting to build a new church, it just hoped to make maximum profit from an office building and move somewhere else?
The Church denies this. They are committed to their downtown location, they say, and want to keep working in their community. They simply can't afford to keep maintaining an aging concrete building which has problems with water, heating and cooling, deterioration of the concrete, and more. The building is now too large for their shrinking congregation and too inflexible to rent out. They are probably telling the truth. Tregoning's decision, however, codifies this formally.
The order gives the Church permission to raze their building. But before they can do so, they must get approval for a new structure. And that structure has to include a new church. It might end up being part of a larger mixed-use building, like the church in the Penn Quarter. Hopefully the church will design something better than that Penn Quarter design, something that doesn't turn blank walls to the street, as does that and the current Brutalist building.
The church itself could also occupy a different part of the site instead of the corner, if the developer that owns the adjacent Christian Science Monitor building proceeds with its one-time plans to demolish and replace that building as well. But one way or another, "that the demolition permit will be issued no sooner than a
building permit for a replacement church."
Since the site lies inside the Sixteenth Street Historic District, HPRB must approve the new design as compatible with the existing historic character of that area. That should prevent any really bad designs. HPRB now has a chance to shape some excellent architecture at this site. They should avoid any temptation to make life difficult for Third Church just because they lost a case, and use their power judiciously to produce a new building that everyone, from architects to passersby to Third Church, can love.
 | David Alpert is the Founder and Editor-in-Chief of Greater Greater Washington. He has had a lifelong interest in great cities and great communities. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He loves the area which is, in many ways, greater than those others, and wants to see it become even greater.   |
Comments
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Interesting how David you've chosen a picture of the church that does it justice .... unlike our local rag here which keeps showing a view of a banner on one of the church's walls ... and trying to make it look like that one carefully staged view/picture is what we're attempting to protect. Thanks for showing one that represents a far more typical view if it.
by Lance on May 14, 2009 1:45 pm
If they want to leave the District, let them leave. I don't see how that building is better than an office building. Why prevent an office building? After all, it will be more tax money for the District.
by Cavan on May 14, 2009 1:55 pm
What makes me most upset, though, is that HP law was created to prevent popularity contests. Most people think this building is fugly, and thus razing it is the politically easy. Do we know that in 50 or 100 years people won't say 'why did they tear this down?' We don't. That's what HP law is supposed to prevent.
Finally, the complex is very distinct, very different, and probably DC's best example of concrete brutalism. For those that think the box of an office building with retail (which is a good idea at 16th and I?) in the base is going to be far superior, I beg to differ. It will be another bland real estate investment that will be torn down in 20 years, after the tax benefits are up. It will be different, but it won't be better.
by MarkM on May 14, 2009 2:35 pm
I thought demolition in this town was predicated on the replacement structure being financed and ready to go. Guess I'm wrong.
by Arnold Berke on May 14, 2009 3:22 pm
2. The other church mentioned, downtown by the MLK Library, is NOT in Penn Quarter! It is Downtown, in the Gallery Place or Metro Center areas but it is too far north and west to be in Penn Quarter.
by FoggyBottom on May 14, 2009 4:26 pm
by crin on May 14, 2009 5:23 pm
Meanwhile, Federal Judge James Robertson has already called the current local interpretation of religious landmarking "flat wrong," and said he "will not be bound" by those lower court decisions. He made it clear the clock is ticking, and the District has weeks, not months, to settle this matter. As to the District's claim that the church hadn't jumped through all the hoops and filed all the appeals and therefore the case wasn't ripe, he said, "violations of First Amendment rights are always ripe."
There are only two possible outcomes here: first, the Vince Gray and Council continue to do nothing and Judge Robertson guts the District's preservation law and imposes both a financial judgement and legal remedy on the District (all this while DCPL chases its tail in a futile lower court action), or second, that Gray and Evans push through a bill allowing clean demolition that preserves at least some of the District's preservation law, while reimbursing the Church for its legal and other expenses and guaranteeing that the District at least consider First Amendment rights in land use cases.
There is no way OHP/HPRB can simply walk away from this case at this point. The Church has spent well in excess of one hundred thousand dollars in legal fees. They MUST be made whole. The principle here is that no government should be allowed to willfully ignore your Constitutional rights then make you go broke to fight to get them.
If Vince and Jack (and Adrian) don't settle this and make the Church whole, Judge Robertson most surely will. This case needs to go away soon....or disaster awaits the entire preservation movement.
by Mike Silverstein on May 14, 2009 7:05 pm
by Boots on May 14, 2009 7:20 pm
The 3rd outcome is that HRPB will use this as a test case to reverse or seriously weaken RLUIPA. Robertson is but one federal judge. As this case makes it way to higher and higher appellate levels, calmer heads will say "Dare we gut all historic preservation for religious structures because of this one case?" I think the answer is "no".
RLUIPA application to historic religious structures couldn't be gutted/weakened by the typical gothic or white-steepled church because no one would object to historic preservation of these structures. But as we see here, there are plenty of folks willing to object to this new style with which they aren't comfortable. This makes for a perfect test case to do away with RLUIPA's applicability to all architecturally historic churches ... including this one.
Also, we are we even talking like today's ruling was a surprise. The mayor long ago flatly stated he wanted this church destroyed so that a developer could get in there. Should we be surprised that someone who reports to him is going to rule for its razing? No, this ruling was exactly what was expected ... by everyone. And this ruling now paves the way for addressing the larger issue ... the threat RLUIPA poses on our historic religious structures.
by Lance on May 14, 2009 7:51 pm
by Lance on May 14, 2009 7:52 pm
Especially when it was the same everyman who abandoned the city for a midget palace in the suburbs. Is he right or ain't he, mister?
by цarьchitect on May 14, 2009 8:03 pm
by Rich on May 14, 2009 8:14 pm
by Jazzy on May 15, 2009 7:27 am
I like your straw man argument that because you have an education your an elitist and suddenly separated from being everyman. As for abandoning the city, ah, if it where only so simple, but then again that view corrseponds beautifully to the modernists simplistic view of architecture. By the way, any architecture described as brutalist??? What do you expect.
by Thayer-D on May 15, 2009 7:47 am
However, you can't make an appeal to popularity without considering other implications. If you want to defend homebuyers for their style choices while condemning their land use choices, you need to justify why they were right in one case and not the other.
by цarьchitect on May 15, 2009 8:11 am
The job of federal courts is primarily to interpret the Constitution...and the law as Congress intended. And here, we are dealing with the First Amendment free practice of religion and a law passed unanimously by both houses of Congress that is as clear as can be in its intent. Outcomes are secondary to Constitutional imperatives and legislative intent at the appeals court level.
Judge Robertson is tough and plain-spoken, but he has almost never been reversed by higher courts.
The interesting fact here that neither you nor I have ever mentioned is that there hasn't been a federal court test of RLUIPA in landmarking and preservation yet. The Preservationists have reached settlements or caved in at the LOCAL level on every case (the Huntsville synagogue case and others), so as not to allow the federal courts to rule and strike down local preservation laws. I can't imagine Tersh, in all his vainglory, wanting to use this case to test RLUIPA. It would be suicidal. Disastrous cases make disastrous law.
There couldn't be a more difficult case to argue. Anywhere. Anytime.
The Church may have had to forego its organist because of financial woes, but the fat lady has started to sing. It's gonna be over soon.
by Mike Silverstein on May 15, 2009 8:32 am
Historic preservation should be about preserving a sense of place, not buildings. Was historic preservation ever about preserving good places? Or was it a movement that was about NIMBYism and freeway opposition? In the 20th century, when the highwaymen wanted to gut every place that was worth anything with a highway, it was a great idea with largely positive outcomes (for example a Metro rather than highway spaghetti). Now, though, it needs to change paradigms just as our entire development and economic paradigms are changing.
Historic preservation should be a completely different beast in a growing, desireable city. In a shrinking city that faced death by highway, it was important to circle the wagons for every building since any razed building meant a potential highway right-of-way. Now, in a growing city, historic preservation should be about planting seeds in a walkable urban place that will enhance a sense of place as it adds people and amenities.
I don't think the current group of preservationists, outside of Richard Layman, get that. They have merely doubled their efforts while forgetting what they were fighting for. This sad episode with this awful, non-functional, leaky church building is exhibit A of my point.
by Cavan on May 15, 2009 9:06 am
Cavan, I'm glad that you now acknowledge that historic preservation was really its own movement, rather than a campaign for walkable urbanism in another guise. But why exactly should preservation change? What's wrong with preservation as the stewardship of cultural artifacts?
You write that:
"Now, in a growing city, historic preservation should be about planting seeds in a walkable urban place that will enhance a sense of place as it adds people and amenities."
That's not preservation. Planting seeds is innovation.
by David Ramos on May 15, 2009 9:23 am
Are you "presuming" to say homebuyers who purchase homes in the suburbs are making the wrong land use decision because they are less eloquent than you? My guess is they thought they where buying a house, not making a land use decision.
But assuming your elitist premise for the sake of argument, don't you think their choice might be more varied if crime and schools where equivalent in and out of town? If I give you a choice between carrots and bloccoli, would that imply that you don't like meat? Com'om sho-taey!
by Thayer-D on May 15, 2009 9:27 am
Mike, When it goes to appeal, the issue being looked at will be "do we want to remove historic preservation from all religious structures?" I don't see appelate judges risking doing so. The issue they'll be "responding to" will be this ... and not whether they think churches should be exempt from their historic preservation obligations any more than they are not exempt from other obligations such as adhering to building codes and fire codes.
RLUIPA is a flawed law based on flawed logic linking it to Constitutional protections. Freedom of Religion is not impinged by having to adhere to preservation laws any more than it is impinged by having to adhere to any other law. Should religious institutions be exempt for repaying their creditors or following zoning laws or building codes or whatever ... simply because they can claim that it is an economic hardship? Yes, the constitutional protections are good ones and no judge in their right mind would diminish them. But any judge in their right mind will surely easily see that requiring a religious body to adhere to regular every day regulations such as fire codes and historic preservation regs doesn't impinge on Constitutional rights.
If you feel they do, then please help me understand why you might think they do, but that other regs such as adhering to fire and safety codes don't. I don't think you'd think that the church should be exempt from these codes too on the basis of Freedom of Religion, do you? thanks
by Lance on May 15, 2009 10:56 am
Your questions are fair ones, and let me try to answer them. RLUIPA may be overly broad, but there is solid legal reasoning for linking it to Constitutional protections.
A municipality's fire safety laws, for example, cannot be used trump my right to light Sabbath candles in my place of worship. Nor can their liquor laws forbid a person under the age of 21 from drinking wine at communion or on the Sabbath.
The RLUIPA law recognizes that the right to pray and practice religious activities often requires a place to do so, and so land use laws cannot be used to find backdoor ways to zone out Mormons, Muslims, Jews, Baptists, or people we don't like. The law was passed after several well-documented cases of communities (mostly in California) doing just that.
The law doesn't allow Churches to stiff their creditors or build five story buildings in areas zoned for smaller structures. It simply says that land use is an extension of the right to prayer, and that government agencies should butt out - not create any undue burdens - unless there is a compelling public interest. And if there is a compelling public interest, the government's intervention should be the least intrusive possible. That's what the law says.
If historic preservation regulations - and those who enforce them - willfully turn their back on claims of violation of First Amendment protections - then those who enforce those regulations will get a smackdown from any and every federal court judge. And that's what happened here.
So this has nothing to do with zoning codes or payment of bills. But the District must prove an overriding public interest to deny demolition, and even Boasberg has admitted that's a tough challenge. I would say impossible.
Hope that answers your question.
by Mike Silverstein on May 15, 2009 11:52 am
Okay ... I'm trying to understand the compelling interest argument ... Are you saying that there would be a compelling public interest to enforce the height restriction, but there wouldn't be a compelling interest to enforce landmark protection?
by Lance on May 15, 2009 12:03 pm
Landmark "protection" is, by definition, a subjective process involving picking out a specific building for this "protection". In the District, it holds the owner to a higher standard of maintenance, and the law can be enforced by heavy fines and even imprisonment. Judge Robertson noted this and stated from the bench that any lower court decision that has ruled landmarking is "not a burden" is "simply wrong," and that he would "not be bound by any lower court decision" to the contrary.
Whether there can ever be a compelling public interest to landmark a church against the will of the congregation under RLUIPA is still unsettled law on the Federal level. IF a court would permit such landmarking, it would certainly require strict scrutiny from the court and that court would surely impose a high standard. No way would a cracking, spalling, leaking, 37 year old structure with no great historic merit (nothing much happened there) meet those standards over the objection of the congregation.
by Mike Silverstein on May 15, 2009 12:48 pm
Landmark "protection" is, by definition, a subjective process involving picking out a specific building for this "protection". In the District, it holds the owner to a higher standard of maintenance, and the law can be enforced by heavy fines and even imprisonment. Judge Robertson noted this and stated from the bench that any lower court decision that has ruled landmarking is "not a burden" is "simply wrong," and that he would "not be bound by any lower court decision" to the contrary.
Whether there can ever be a compelling public interest to landmark a church against the will of the congregation under RLUIPA is still unsettled law on the Federal level. IF a court would permit such landmarking, it would certainly require strict scrutiny from the court and that court would surely impose a high standard. No way would a cracking, spalling, leaking, 37 year old structure with no great historic merit (nothing much happened there) meet those standards over the objection of the congregation.
by Mike Silverstein on May 15, 2009 12:48 pm
I think we agree on this:
"Whether there can ever be a compelling public interest to landmark a church against the will of the congregation under RLUIPA is still unsettled law on the Federal level."
And it is for this reason that I think this case will make its way to appelate levels ... i.e., all parties have an interest in seeing it settled. No one like operating under uncertainty.
What we may not agree about is what definies "historic". I understand there is the matter of "something having happened there" to make a place historic. For example, St. John's church near the White House is pretty ordinary as far as style. Churches like it are a dime a dozen in New England and New York. However it is historic because things have happened there. (I.e., it is the 'church of the presidents.)
But there is another angle to historic preservation ... and that has to do with architectural significance. You may view the church as a 37 yr old "cracking, spalling, leaking" structure (which incidentally can and should be blamed on the stewards of this building over the last 37 year ... i.e., the very same folks today looking to tear it down) but it is also undisputably viewed as being extremely architecturally significant in the evolution of the design of churches and as representative of a specific style. Whether you or I or anyone for that matter in 2009 likes that style (or its name) doesn't negate the fact that this church has been named by noted experts in the field as one of the best examples of that style. In this manner, it is indeed historical. And in this manner I think we may find that it will receive the same consideration by appelate judges as they would give to say "St. John's 'church of the Presidents'".
I guess I really believe that as this thing winds its way higher, emotions and "tastes" will become farther and farther removed from the decision making. And isn't that really "the right thing" to happen here? Shouldn't these types of decisions be being made on facts and circumstances and not whether someone "likes" or "dislikes" a look or style? Isn't all "like" and "dislike" subjective? Do we really want important decisions made on the basis of subjectivity?
by Lance on May 15, 2009 1:09 pm
I agree that if this were to wind its way higher, emotions and tastes would become farther removed from the decision making process. And I agree that's good. Just I can't imagine any preservationist with any sense of legal strategy wanting to pick this case as the one to challenge RLUIPA. It has so many problems.
And I really, really object to people blaming the congregation for the deterioration of the structure. Concrete is pervious, and most brutalist structures don't age well. I.M. Pei's gem on the mall is experiencing similar major deterioration problems that were recently chronicled in the Post.
Please take time to read Tregoning's take on the faulty construction, disputes with the architect, and weather-related deterioration. And remember, it costs them thousands of dollars just to change a light bulb, and the HVAC has to be on 24/7 for an uninsulated concrete building that was built when the cost of oil was $2.55 a barrel. They've never been a large congregation, and the building is becoming more expensive to maintain as deterioration accelerates. Don't blame them for that!!!!
Please remember, these raw concrete structures were somewhat experimental, not built to last forever, and they do not age well.
by Mike Silverstein on May 15, 2009 1:37 pm
That process has run its course.
And from my understanding, economic hardship is indeed an matter of relief which can be sought from the Mayor's Agent. There have been many cases which have received favorable rulings on that basis.
by William on May 15, 2009 4:09 pm
It is confusing, and had Tregoning allowed demolition without preconditions, it would not longer be in the hands of HPRB and HPO.
But her ruling - as David points out - has strings attached. The demolition permit is denied until HPO/HPRB approve whatever would take the current structure's place. That's not what the Church requested, and not what Judge Robertson seems to be demanding.
Also, DCPL says it will appeal the Mayor's Agent's ruling in District Court. That's ridiculous, but so are they. This is now a Federal case, and DC courts are irrelevant.
So, unless Vince Gray and Jack Evans move that clean bill allowing for demolition and nominal damages, and it's passed by Council and approved by the Mayor -- and it satisfies the plaintiff (the Church) -- this matter will be back in Judge Robertson's courtroom -- probably this summer. And EVEN if/when the Church gets its way on demolition, they'll have to come before OHP/HPRB for approval of the new development.
So the First Amendment landmarking case - which is tied in with the demolition application - is still before the Federal District Court. Even though Tersh walked out of Judge Robertson's hearing while it was still in progress, OHP/HPRB can't walk away from this case until the plaintiffs and/or the judge say they can.
You're right, William. It is confusing. But so is the law.
by Mike Silverstein on May 15, 2009 6:22 pm
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