Posts about Mike Silverstein

Preservation

Tear down Third Church or I will, judge tells DC

by David Alpert   •   April 9, 2009 1:43 pm

While one judge railed against misconduct in the prosecution of Senator Ted Stevens on Tuesday, another judge in the courtroom next door sharply rebuked the DC government for its refusal to let the Third Church of Christ, Scientist at 16th and I raze their aging, concrete, historically landmarked building.

Federal Judge James Robertson made it clear that he believes the landmark designation of the church imposes a burden in conflict with the federal RLUIPA statute. He denied DC's motion to dismiss and all but promised that if Office of Planning Director Harriet Tregoning, the "Mayor's Agent" on the administrative appeal, doesn't rule for the church and grant them permission to tear down their building, he will in a "hundred page decision" that wades into the First Amendment "thicket".

Most expect Tregoning will do just that. In a very unusual move, she presided over the case personally instead of delegating the job to the typical administrative law judge. Ruling that Third Church's building imposes financial hardship, due to the expense of heating and lighting the concrete structure, the difficulty of maintenance, and other burdens would get rid of the case without creating a potentially dangerous precedent exempting religious bodies from their obligations to preserve other, more historically worthy buildings.

Robertson has earned himself a no-nonsense reputation. After promptly throwing out the lawsuit challenging President Obama's citizenship, he asked the plaintiff's attorneys to justify why their suit wasn't frivolous and harassing and why they shouldn't pay back the President for his own legal fees. Robertson is also the judge who resigned from the FISA court in 2005 with a sharply-worded letter criticizing the constitutionality of the secret court.

The judge made his opinions on this case clear right away. ANC Commissioner Mike Silverstein, a supporter of the church's position, sent this synopsis of one exchange, with Robertson questioning DC's counsel Leah Taylor.

"Have you seen the church?" Judge Robertson asked ... "Yes, your honor," she replied.

"Been down there? Walked around? Seen the building?" he continued. "Yes, your honor," she replied.

"Gone inside?" he asked. "No, your honor," she replied.

"Couldn't find the door, could you?" he shot back with a gleam in his eye and a wicked smile.

The left side of the courtroom, filled with members and backers of the church, erupted with laughter. The right side, where the preservationists were sitting, heard a few nervous chuckles.

One of the biggest urbanist arguments against the building is the position of the door, in a courtyard on the opposite side from the corner. Blank walls face I Street and the portion of 16th closest to the corner. A fire door does open onto I, and according to church officials, confused visitors often try to knock on that door.

But the issue before the court is whether landmarking the structure violates the church's First Amendment rights. And according to Silverstein, Judge Robertson clearly signaled his willingness to overturn the Metropolitan Baptist Church case holding that landmarking of a church does not pose a "special burden". Robertson also criticized the HPRB hearing which denied the raze permit, where Chairman Tersh Boasberg dismissed First Amendment issues as being beyond the scope of the Board's purview. "I am very troubled that the District refused to even entertain assertions of violations of First Amendment, RLUIPA and RFRA rights," Robertson said.

This is a great test case for those eager to curtail preservation and a terrible case for preservation itself. The preservation community will benefit most if they lose this case in the Mayor's Agent hearing so that they don't lose the broader case in court.

Preservation

Third Church brings civil rights lawsuit

by David Alpert   •   August 8, 2008 11:51 am

The Third Church of Christ Scientist, which occupies a now-landmarked Brutalist modern building on 16th Street, has brought a civil rights lawsuit against the city after having their raze application denied by HPRB last month. According to the Post article, "the church says the landmark designation violates the First Amendment by limiting its ability to freely practice religion."

One way or another, the church is going to win. But a court victory would be the worst outcome for DC and for historic preservation in general. As I've argued before, I don't believe churches deserve special treatment in historic preservation. Instead, any owner of this building ought to be able to replace it. It's ugly, interacts badly with the street, is expensive to heat, difficult to maintain, dark, and unwelcoming. The problem isn't that it's a church; it's that it's a bad building.

A court decision for the church could set precedent regarding other churches. What happens when a church wants to tear down a row house to build a parking lot to accommodate their religious worship? The Becket Fund is salivating at this opportunity to find a test case for RLUIPA which is very sympathetic to their side. Judges are human, and emotional arguments sway them in close decisions. It'll be hard for a judge to side with preservationists on this awful building and against the sweet congregation members.

The church told community members that after the HPRB, they would pursue an appeal to the Mayor's Agent, but (unless the press coverage is misleading) it doesn't look like they are doing that. Maybe the church believes the Mayor's Agent won't accept their appeal, or maybe they simply want to help the Becket Fund make a larger point.

Either way, Dupont Circle ANC Commissioner Mike Silverstein made a good point in the Raw Fisher column:

The city should be careful what it wishes for in this case. This civil rights challenge, he said, has the potential to do for the District's ability to regulate churches what the recent Supreme Court ruling did to the city's authority over guns...blow it away altogether.

Many of my lawyer friends thought DC's pursuit of the gun lawsuit was foolish. After losing the circuit appeal, they could have tried to change the law to something less absolute. Instead, they shot the moon at the Supreme Court and now there's an individual right to bear arms that didn't definitively exist before. Gun control is worse off becasuse of DC's actions. If they're not smarter this time, we could end up with a general right of churches to ignore historic preservation. And that outcome would be far worse, even for the most ardent preservationist, than simply giving in on this one, scarcely historic building.