Evans' church bill goes beyond RLUIPA
There have been great and thoughtful comments on my post last week about the Dupont ANC's resolution endorsing Jack Evans' bill about churches and historic preservation. Commissioners Mike Silverstein and Bill Hewitt both commented very thoughtfully on the issue on that post.
Here is the complete text of the bill Evans introduced, then withdrew. RLUIPA, the federal law that protects religious buildings in land use regulations, has two main components. First, it prohibits any land use regulation that "imposes a substantial burden on the religious exercise" of any person or religious organization, unless it "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." The second, and less controversial, provision prohibits governments from treating religious institutions differently than non-religious institutions, or treats one religion differently from another. That latter provision ensures that a city doesn't ban all churches, or block a certain religion from building in a community.
But Evans' bill and the Third Church landmarking aren't about the discrimination clause, they're about the substantial burden clause. Does landmarking the church impose a "substantial burden" on the religious exercise of the congregation? Maybe so. I certainly don't like the building and don't believe it should be a landmark. Evans' bill, though, would have given churches the power to decide for themselves whether historic preservation would impose a substantial burden or not. The bill doesn't specify any way for others to challenge that decision.
Might a church in a 100-year-old building decide that their current facilities aren't large enough, get their building declared non-contributing, tear it down, and and redevelop it into a modern building with glass and metal like the church redevelopment in the Penn Quarter? Might a church purchase some historic property and turn it into a parking lot, arguing that a lack of parking poses a substantial burden?
I don't know the answers. But the citizens, elected legislators, appointed officials, and the courts should participate in answering those questions. If we simply give a church the unilateral power to make that decision, we're abdicating our responsibility and undermining the purpose of historic preservation
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