Churches and “Landmark” Laws

Designation of a church as a historical landmark may violate the church’s rights.

Church Law and Tax 1991-07-01 Recent Developments

Church Property

A federal appeals court ruled that the constitutional rights of a church were not violated by a state “landmark” law that prevented the church from demolishing one of its buildings. St. Bartholomew’s Church is a Protestant Episcopal Church organized in 1835 under the laws of New York as a nonprofit religious corporation. Construction of the current sanctuary began in 1917. The church is a notable example of Byzantine style, built on a Latin cross plan. Significant features include its stone exterior, soaring octagonal dome, and large rose window. Perhaps most significantly, the church incorporates the Romanesque porch of the former church building. The porch is composed of a high arched central portal flanked by two lower arched doorways, all supported by columns. The doors themselves are richly decorated bronze, depicting Biblical themes. Next to the church sanctuary is a terraced, 7-story building known as the “community house.” The community house was built by the church in 1928, and complements the sanctuary in style and decoration. The community house is used for a variety of social and religious activities. It contains a preschool, theater, meeting rooms and offices, and facilities for providing food and shelter to the poor. In 1967, finding that “St. Bartholomew’s Church and community house have a special character, special historical and aesthetic interest and value as part of the development, heritage and cultural aspects of New York City,” the Landmarks Preservation Commission of the City of New York designated both buildings as “landmarks.” This designation prohibits the demolition or alteration of the buildings without approval of the Commission. The church did not object to the landmarking of its property. In 1983, the church applied to the commission for permission to replace the community house with a 59-story office tower. This request was denied as an inappropriate “alteration.” A year later, the church filed a second application, scaling down the proposed office building to 47-stories. This application also was denied, as was a third application. In 1986, the church asked a federal court to declare that the Commission’s actions violated the church’s constitutional right to religious freedom. It alleged that the landmarks law “excessively burdened” the church’s practice of religion, and “entangled” the government in religious affairs. Specifically, the church alleged that the Commission’s actions impaired its ability to carry on and expand the various activities that are central to its religious mission. It argued that the community house no longer is a sufficient facility for its activities, and that the church’s financial base has eroded. Construction of an office building would enable it to provide adequate space for its programs while at the same time generating needed income to support and expand those programs. The church also alleged that the Commission’s actions amounted to a “taking” of the church’s property without just compensation, in violation of the federal constitution. A federal district court rejected the church’s claims, and the church appealed. A federal appeals court also rejected the church’s claims. It quoted from a recent decision of the United States Supreme Court: “The right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes … conduct that his religions prescribes.” The court observed that the landmarks law was a “neutral regulation of general applicability,” and accordingly it was valid even though it happened to interfere with a church’s building plans. The court acknowledged that the landmarks law had “drastically restricted the church’s ability to raise revenues to carry out its various charitable and ministerial programs.” Nevertheless, “neutral regulations that diminish the income of a religious organization do not implicate” the constitutional guaranty of religious freedom. What government practices would violate this constitutional guaranty? The court observed: “The central question in identifying an unconstitutional burden is whether the claimant has been denied the ability to practice his religion or coerced in the nature of those practices.” It quoted again from a decision of the United States Supreme Court: “[I]ncidental effects of government programs, which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional context is ‘prohibit.'” The appeals court concluded, on the basis of this language, that no constitutional violation occurs “absent a showing of discriminatory motive, coercion in religious practice, or the church’s inability to carry outs its religious mission in its existing facilities.” The Commission’s actions simply did not amount to a constitutional violation under this standard. The court concluded that the community house could be modified to accommodate the church’s programs, and that the church possessed sufficient resources to finance such structural modifications. It observed that the church had a total endowment of more than $14 million, much of which was unrestricted. And, the church could conduct a capital fund-raising campaign or even borrow money. The court suggested that if the structural modifications ever proved inadequate to accommodate the church’s programs, then an application by the church to construct an office building might well receive a different reception. But at this point, the court was unwilling to conclude that the church was incapable of carrying out its programs in its existing facilities (with appropriate modifications). Accordingly, the Commission’s denial of the church’s application for permission to construct the 47-story office building did not violate the church’s constitutional rights. St. Bartholomew’s Church v. City of New York, 914 F.2d 348 (2nd Cir. 1990).


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