RLUIPA? I was unaware that it was against a religion to preserve a church.

by mfs on Apr 10, 2008 10:46 am • link • report

It IS against the religion if the church building somehow impedes the church's mission, as defined by the church.

If a Congregation is shrinking, or if architectural flaws are creating a serious hardship (such as sunlight blinding the organist, a lack of insulation and a decent HVAC system

bankrupting them and forcing day care programs to go elsewhere, and a basic lack of doors and windows crippling its mission of outreach), RLUIPA's basic premise - that land use is an extension of worship - makes it the church's call here. And the broad construction clause of RLUIPA says unambiguously that the law must be interpreted as broadly as possible within Constitutional bounds.

RLUIPA is aimed at all government land use laws that have been used to discriminate against churches. And it says that any regulation that imposes "an undue burden" on the congregation is illegal. That means if a growing church is bursting at the seams, it must have the right to tear down and expand - within the constraints of the neighborhood. No community can say "we don't want a five story high church" if the area is zoned for five story buildings. The law says the jurisdiction must prove "a compelling need" for any restriction on Church land use. One could reasonably assume that compelling need would include lack of neighborhood infrastructure. But it would not be safe to assume that it would include the viewing pleasure of non-believers.

Folks, this law says you can't use zoning to keep out Jews, Muslims, Baptists, or anyone else. You can't use zoning to prevent churches from doing what anyone else can do. That you can't use preservation laws to save the church, if it means killing the Congregation. And it also seems to say that if you can watch a movie at the Uptown Theater on Sunday (which may show people in church in the movie), nobody can prevent a real church from renting that same theater for actual worship services.

This law separates church and state. It is a federal civil rights law - and it applies to all 50 states and the District of Columbia. It's bad enough that we don't have voting rights. But it's just as bad when a city council that bemoans Congress' denial of those rights won't approve legislation to force city agencies into compliance with a federal religious civil rights law that they seem intent on ignoring until the matter is resolved expensively in court.

As far as consideration, the issue of RLUIPA was brought before HPRB by Dupont Circle ANC both in November and December. At the December hearing, the HPRB Chairman dismissed the issue, saying he didn't want to get into a discussion of the First Amendment. As is pointed out, this is a continuing battle.

Anyone who wants to investigate this further, simply google RLUIPA and you'll find a text of the law. It's a clear as can be, and - like it or not - it is the law of the land. Or go to the website Thirdchurchfreedom.org. It has most of the relevant legal documents.

by mike on Apr 11, 2008 12:05 pm • link • report

I can see how it could appear to you that things are rushed through the ANC meetings and decided upon without much attention to detail. But on the contrary, a considerable amount of thought does go into our decisions.

Each Commissioner receives background information over the course of the month preceding each meeting. In the more difficult matters, ideas are often circulated among Commissioners before the meeting--anything from initial thoughts to proposed draft resolutions. Depending on the topic, we may solicit input from our own constituents or advice from subject matter experts. Much of this obviously happens outside the regular meeting. This is not at all to be secretive or to cut anyone out of the decision-making process. Our contact info is public, and I for one am interested in all the input I can get before making a decision, which I often receive. I have seen the same actions taken by other Commissioners as well.

With the brick issue, I expressed my concerns at the meeting rather than the first time I read the inital draft of the resolution earlier that week. I let my concerns be known at the March meeting and the draft resolution was modified after some back and forth discussions over the intervening month. Had I not explained the rationale behind the changes at the April meeting, it would have looked as though a resolution were proposed and accepted without discussion and without regard to the concerns of our neighbors. Yet much discussion had indeed taken place, much thought had gone into the resolution, and we came up with something we could all agree on.

My point is that although some thought and consideration may not be obvious at the meeting, this does not mean that thought and consideration have not been put into our decisions. A good example of this would be the Third Church issue. We have discussed this matter a great deal, both at previous meetings and independently. I don't believe there is a single one of us who hasn't been interested in and engaged with this topic. The April meeting's discussion stemmed from one of the Third Church member's comments at the beginning of the meeting where anyone can stand up and make an announcement. This is why it didn't show up on the agenda. The discussion that followed may have seemed biased from your point of view because it looked as if we were not giving this much thought, but this is not at all the case. Personally, I have even talked about this with friends and family given my strong feelings on the topic (I lean libertarian in some respects, so this issue wound me up considerably). So in my case, I didn't speak up at that meeting because I have heard the arguments on both sides, because I had voiced my opinion previously, and because I knew the other Commissioners were already in agreement with me on this (and therefore needed no convincing).

Having said this, you have made an excellent point. It strikes me that we should be making more of an effort to explain the rationale behind our decisions, especially when we arrive at them outside of our public meetings. I will pass on my thoughts on this to the other Commissioners, and will endeavor to do a better job in this respect. In future, please do point out whatever you see as flaws in logic, possible bias, ignorance, or anything else that could detract from making our resolutions worthy of the 'great weight' they are due. This is one reason why the Chair solicits discussion from the audience before we vote. Contact your Commissioner as well to express your opinions on agenda items that are important to you.

If you want to discuss this further, I'd be happy to talk to you. My email is wemhewitt@gmail.com, cell is 202-215-9154. I hope this is helpful.

Bill Hewitt (ANC 2B02)

by WEM Hewitt on Apr 11, 2008 3:14 pm • link • report

I couldn't agree with your comments concerning ANCs more. These little fiefdoms spread throughout the city are nothing more (for the most part) than litte busy bodies exerting muscle on whoever stands in their way.

Look at what ANC 3C did to the Giant at Newark and Wisconsin. look at what ANC 3E continues to do to the greater Tenley-Friendship corridor.

ANCs constantly bitch about wanting great weight in front of city agencies and boards, but seldom give weight to issues or their constituents.

ANC 6A is proposing strengthening the ANC charter by providing city resources to the ANCs such as a dedicated zoning attorney, etc. I would go the other way with it. Simply eliminate the ANCs and let people express their views through community associations and their Council Members.

by William on Apr 11, 2008 3:17 pm • link • report

Bill (and also Mike), thank you for your thoughtful comments.

I agree that the brick discussion was an excellent example of great communication with the ANC.

As for the Third Church resolution, it seems that your comments support my point. While the ANC may have deliberated quite thoroughly on Third Church (I recall from the November meeting, which was very thorough), the fact that the resolution came up in response to the church member's comment shows that the Evans bill hadn't been deliberated upon.

Had the Commissioners discussed the bill beforehand? Had you read it? It didn't appear that way. Those Commissioners I spoke to afterward seemed not to have thought much about the bill; the questions asked by Commissioner Meehan also support that impression.

It seems that it would be unwise to vote on a resolution supporting a bill that the ANC hadn't read and analyzed. The resolution could perhaps have been more general, giving support for the overall intention of protecting Third Church's rights under RLUIPA, for example. But I believe the resolution specifically endorsed the bill.

Regarding the Chair's call for audience comments, that didn't happen this time. I'm sure it was not intentional—it was a minor item and the Chair probably didn't want to waste much time. Nevertheless, there was no opportunity for audience comments. I am sure, because I was waiting for it in order to urge the ANC to take more time to research the bill before voting or to make a less specific resolution.

I am glad we are able to have this discussion and greatly appreciate the comments of both of you. As you know from reading this blog (click on Third Church in the tags to see everything I've written), I completely agree with the ANC on that specific building. I just hope that the ANC will take the time to do some deliberation and research before passing a resolution in response to an audience comment on a potentially far-reaching bill.

by David Alpert on Apr 11, 2008 4:31 pm • link • report

this misinformation about RLUIPA by the becket fund is outrageous. everyone can agree that *additional* restrictions should not be placed on churches, but to say that a church is exempt from complying with otherwise valid laws is favoritism for organized religion, a treatment that is not shared by those who worship privately.

as an atheist, should i not be able to maintain a place to contemplate my views on creation and the origin of life, without being frustrated by restrictions on the place where i practice my beliefs? how is that different?

by AS on Apr 11, 2008 4:34 pm • link • report

William (the non-ANC commissioner one): I must disagree with you about abolishing the ANCs. They are a great way for citizens to participate in the process, either as Commissioners or by talking to Commissioners (like I am doing).

Councilmembers are not especially aloof, but they are busy and work on many things. They represent a fairly large swath of the city and might have their base in one area. It's hard to defeat an incumbent Councilmember if you're unhappy with his or her policies because of the size of the electorate.

ANCs are an effective way to empower citizens to participate in the process. Even if their decisions aren't followed by city agencies, they do have a megaphone that wouldn't exist otherwise. And at the same time, it's appropriate that the ANCs sometimes don't get what they want, since city agencies have to make decisions for the good of the city that might not be what neighborhood activists most want.

The fact that some ANCs take a more NIMBYist posture than we'd like isn't a reason to abolish them, it's a reason for more people to participate. There are many people who want development in Tenleytown and Friendship Heights; they simply need to speak up as well.

I actually think more citizens would participate in the ANCs if they had more power. Because they are only advisory and are indeed disregarded more often than not, it's not worthwhile for most citizens to pay attention. If, for instance, we instituted a performance parking program whose revenue could be spent on streetscape and transportation projects at the direction of the ANC, it would become a lot more important to participate and would probably lead to more contested elections, more press coverage, and a more robust process.

by David Alpert on Apr 11, 2008 4:39 pm • link • report

I regret (especially as I confess this publicly) that I did not read the text of the bill myself. But I was apprised of the salient points of the bill by a trusted source (a fellow Commissioner). I was also aware that the bill was withdrawn because the language was seen to be too broad and that it was seen to threaten historic preservation generally.

I know a few but not all Commissioner opinions on the bill, so I will just speak for myself: I can see the concern that passage of the bill would single out churches as having special rights that other organizations or individuals do not enjoy. I can also understand the concerns of preservationists that fear a slippery slope--today it's a church and a building most find unworthy of preserving, but tomorrow it's a big developer leveling our treasured row houses. I can see that, and I share these concerns. But I still think the bill should have been passed.

Here's why: Frankly I think historical preservation efforts are going a bit overboard. The line between what is worth preserving and what isn't is not a science. It's easier for people to agree on preservation questions at the ends of the spectrum...that we should protect a row of 100 year old Victorian row houses, or that we should not protect a vacant 1970s era strip mall. In my opinion, the building Third Church operates in falls in a grey area. Those who are far more immersed in historical preservation than I am have articulated great reasons to save this structure, and I don't doubt them. What troubles me is that preservationists need public support to continue their work, and they lose it when they engage in efforts like this with Third Church. I have heard them jokingly referred to as "hysterical" preservationists. This is increasingly how they are being perceived, and this issue is not helping their reputation.

In these grey areas, we must err on the side of respecting property rights. We must be enormously prudent in making decisions that determine whether these rights will be taken away. There must be solid public support for and justification behind using the power of the government to exact your will on your neighbor. I'm amazed by how casually this is done here in DC. A privileged group essentially has the power to point to any building it likes and to direct our government to freeze the assets of its owner. Museums don't go around confiscating works of art for their collections...they raise funds and buy the pieces they want to preserve for posterity. Perhaps this would be a better method for historic preservation, at least in the grey areas like Third Church.

So with this philosophy, I took a pragmatic approach to the vote to support Jack Evans' tabled bill. It would not have strengthened everyone's rights (as a better bill would...the argument of "AS" is spot on) but it looked like it was at least opening a door to that. I suppose we could debate my logic or my underlying philosophy or facts I may have overlooked. But I had given the matter some thought before voting.

I am sorry that comments were not solicited this time--that's pretty unusual, as our Chair is very conscious of doing this. And you are right, we should have postponed the resolution until the next meeting, after we had a chance to post it on the agenda. All I can say is that we do what we can. We put in as much time as we can outside of our 'day jobs', and we are always conscious of our duty to the people we represent. Yet we do make mistakes. These oversights were not intentional. If you see anything else along the way that needs attention, please do give me a shout and I'll do what I can to make it right.

Best,

Bill Hewitt (ANC 2B02)

by WEM Hewitt on Apr 11, 2008 9:52 pm • link • report

Building regulations reflect community values. Historic preservation regulations express community values about architecture, place, and history, and what is important to preserve.

We should never err, and at the least, we should endeavor not to err when we create public policy.

To "err" in favor of property rights means that you favor or privilege a certain group of people or individuals to do whatever they want, at the expense of the community, and community character and values.

Frankly, if this law passes, I hope every church in Dupont Circle buys buildings in and around the church and either lets them rot (see Shiloh Baptist Church) or converts them into parking lots (many examples across the city).

This happens with churches elsewhere in the city, where their actions are not checked by the real estate market, because they have been located in areas of low demand.

Related to David's point, ANC Commissioners can't merely be parochial, they have to consider the broad impacts of legislation, not just think about one or two particular points of a proposal that has dozens of implications.

I advocated against the legislation. I can't claim that's why CM Evans withdrew it.

But RLUIPA is about the practice of religion. It's not about religous bodies owning property. Good lawyers ought to be able to eviscerate any argument wrt building regulations and churches, so long as the law is not differentially applied.

One of the only RLUIPA matters I saw that I figured met the test of the law was a GA jurisdiction that legislated that churches could only locate where churches had been placed previously. They did this to limit the impact on property tax revenues. But that is a restriction of the ability to practice religion. But MontCo is fighting a RLUIPA case, which MontCo should win. They have legislated against institutional-campus uses in their Ag. Preserve. They didn't bar churches, but any institutional use, therefore, no differential application to religious institutions.

Anyway, I am with David. ANCs can be great. Or we can have 270 little Marion Barrys. As a once colleague on an ANC committee said "they don't understand that the process is supposed to be open, transparent, and fair."

There are some great ANCs. Mostly there are bad ones. Although I will say that without a significant training infrastructure, the city government and the people generally bear some responsiblity for this general failure of what could be a great example of participatory-representative democracy in action.

One other problem I have with ANCs is that they tend to "governmentalize" how people think about solving problems, because ANCs exist and legislate/suggest at the micro-neighborhood level. There is a great need for transformational thinking and for self-help. We aren't getting such very much from ANCs, although ANC6A is a welcome exception.

by Richard Layman on Apr 12, 2008 10:06 pm • link • report

Richard,

The arguments you are making here seem binary to me: Buildings are either important to preserve or they are not, ANCs are either great or bad, the bill's failure will preserve history while its passage would lead to dilapidated buildings and parking lots, etc. It's all too simplistic...very black and white. And why would you hope to see buildings in Dupont torn down without knowing which buildings they are? This vindictive statement makes it seem that you are more interested in being right or getting your way than in historic preservation.

Respect for property rights in these grey areas, where we are bound to err in someone's opinion, does not automatically translate into owners doing "whatever they want". I support historic preservation, but this is a very broad statement. I may have different opinions on what is worth preserving than you do. People have vastly different opinions on what is important to preserve. The Third Church issue illustrates this well...this is a case where historic preservation regulations do not appear to be expressing community values in their decisions on what is important to preserve.

It appears that you are knowledgeable about historic preservation and have a lot of good advice to offer on the subject. If your aim is to make a positive change to DC governancve issues, I think it would be helpful if you could convey this knowledge through constructive criticism as David has done, without the bitter tone.

Regards,

Bill

by WEM Hewitt on Apr 16, 2008 1:47 pm • link • report

A dedicated zoning attorney for ANCs, that's a good one. DC Office of Planning doesn't even have a designated attorney, of any kind.

by Brendan on Apr 29, 2008 7:34 am • link • report