Posts about RLUIPA

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.

Development

Late night links: familiar battle lines edition

by David Alpert   •   July 8, 2008 11:04 pm

Moran, Oberstar defend transit: Virginia's Burke Connection covered Monday's town hall meeting in Tysons. Oberstar, the chair of the House Transportation Committee, got most of the quotes in the article, defending light rail and criticizing the federal funding formula which ignores many factors. And, like all pro-transit officials, he expressed a clear hope that things will change next year. "Shifting dollars from highway to transit? In this administration, that anathema," Oberstar said.

Smart Growth at Tenley library? The chair of ANC 3E (Tenleytown, AU Heights, and Friendship Heights), Amy McVey, is reporting that DMPED has decided to go ahead with a public-private partnership to develop the Tenley-Friendship Library site. Earlier this year, they solicited proposals for a private developer to build housing along with a new library and/or rebuilding the adjacent school; Ward 3 Vision supported the idea, while some members of the community opposed it. A mixed-use project would better utilize this key corner right by Metro. McVey says they've selected LCOR, but it's not clear how closely the final project will resemble their original submission.

Maryland town keeps out the Muslims: The Frederick County town of Walkersville stopped a Muslim sect from building a religious retreat on the town's largest farm, reports the Post. "Many residents told reporters they were nervous about the prospect of so many Muslims establishing a presence in their community." The landowner is suing, claiming violations of RLUIPA along with many other claims.

Preservation

Church anti-preservation bill comes back

by David Alpert   •   June 20, 2008 9:47 am

In March, Councilmember Jack Evans (ward 2) introduced a bill to essentially exempt churches from historic preservation. It was clearly designed for Third Church, the Brutalist octagonal pipe that should not be a landmark, but would have much broader implications. Now, the bill is back, reintroduced on June 10 by Marion Barry (ward 8), Richard Layman reports.

According to my I-am-not-a-lawyer-but-play-one-on-the-blog analysis, the bill would go beyond RLUIPA by allowing churches to get out of preservation (declare themselves "noncontributing") just on their say-so that the preservation rules substantially interfere with their religious exercise. Does it interfere with religious exercise when a church can't demolish nearby rowhouses to add more parking? After all, people can't pray if they can't park (unless they walk, bike or take transit of course).

Layman relates the story of Pilgrim Baptist Church in the H Street area, which let two old row houses decay and fall apart so they could put in a parking lot, and Shiloh Baptist Church, which maintains many vacant properties on Ninth Street which they refuse to use or sell, hindering the creation of a lively neighborhood.

As I've argued before, as has Layman and others, churches should not be unduly burdened because they are churches, but neither should they be unduly privileged. Third Church should go because it's a bad building for the city. If it were a hotel or a federal office building, I'd say the same thing. Let's not allow enthusiasm for tearing down that church to topple valuable protections for other churches.

Preservation

Evans' church bill goes beyond RLUIPA

by David Alpert   •   April 13, 2008 3:06 pm

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—to balance the needs of individual property owners against the collective interest of the neighborhood to preserve its architectural character and heritage.

Preservation

Dupont ANC should give great thought to deserve great weight

by David Alpert   •   April 10, 2008 9:11 am

DC's local elected Advisory Neighborhood Commissions are entitled to "great weight" from agencies on whose decisions the ANC has commented. But what does "great weight" mean, and are the ANCs getting the consideration they deserve? The Dupont Circle ANC has been asking this question frequently of late as the HPRB has disagreed with nearly all of their recent recommendations, such as on the Third Church landmarking or the height of the 14th and U project.

If the ANC wants to receive great weight, they should start by making sure great weight goes into their decisions. With the Dupont Circle ANC, that has sometimes been the case, and other times not at all. At last November's meeting, for example, the ANC spent about an hour and a half on the contentions Third Church landmarking issue, but only about ten minutes on the 14th and U project. And last night, they voted to endorse a controversial piece of legislation exempting churches from some historic preservation, a proposal that raises complex legal issues, without placing it on the agenda or letting members of the audience speak.

Politics

Church exemption from historic designation?

by David Alpert   •   March 17, 2008 7:51 am

While I was debating parking zoning regulations, Councilmember Jack Evans announced a new bill that would exempt religious institutions from being designated as historic sites against their will. This is clearly aimed at the Third Church landmarking.

I oppose protecting that building, because I see the role of historic preservation as retaining the character of neighborhoods, not about protecting a set of standalone pieces of art by various famous architects despite their impact on the street fabric. However, I also recoil at laws that prescribe favored treatment for religious buildings. The HPRB decision was wrong not because Third Church is a church, but because it is a bad building that deadens a street corner. Its treatment should be the same whether it is a hotel, a house, or a church. Richard Layman hates the bill too.

Historic preservation has been great for DC, preventing this from turning into this. But if we already have this, should we really use law to keep it the way it is? Is it more important to maintain a variety of buildings that make DC's architecture more interesting, or preserve neighborhood fabric that also fosters a lively streetscape?