The Third Church of Christ, Scientist challenge to the DC historic preservation laws

Christian Science Church and cool glass building
Originally uploaded by davetron5000

(Flickr photo by Davetron5000.)

Other blogs, major media, and community newspapers have reported about the designation of the Christian Science Church as a historic landmark. The church wants to redevelop the site in association with a developer, while some historic preservationists believed that the building, designed by I.M. Pei and an example of brutalism, was worth designating a historic landmark and worth preserving, even though the building isn't 50 years old (which is normally the minimum age required for a building to be considered as a landmark). The Historic Preservation Review Board declared the building a landmark a few months ago.

I have written about this and it sparked some interesting thinking (if I say so myself) in terms of looking at the oeuvre of an architect overall, vs. the ouevre present within DC only, in terms of making decisions and inferences about signficance and worth. (If I were on the Historic Preservation Review Board, which would never happen because I don't donate much $ to politicians, I probably wouldn't have voted in favor.)

The Church is challenging the designation, using the RLUIPA law, a federal law which is supposed to guarantee that churches receive equal protection under the law.

Unfortunately, the law is more frequently interpreted as giving churches preferential treatment and the ability to ignore local laws in their favor.

This is dangerous, because it could lead to big screw ups and losses with regard to DC's historic preservation laws, so I pay close attention to it.

The Downtown Cluster of Congregations, which I once thought of as a progressive organization, but now merely think of as a tool of developers (just do a study of the various Terry Lynch quotes in Washington Post articles of say the past 5 years for proof) favors the Church vs. the City and therefore historic preservation in terms of case. (To think I voted for the guy when he ran for an at-large position on City Council in the early 1990s...)

Below is something I wrote about this case on the Historic Washington yahoogroup e-list:

While I think this is a bad example (the Christian Science Church) to go to the mats on RLUIPA, I think that the holding in Kalorama Heights Ltd. Partnership v. District of Colum. Dep't of Consumer and Reg. Aff. 655 A.2d 865, 873 (D.C. 1995) provides a basis for argument about the primacy of building regulations in this instance. (NOTE: I AM NOT A LAWYER)

This case found that plaintiff declaration of economic hardship, in and of itself, was not strong enough to obviate building regulations in favor of plaintiff exhortation of property rights, especially given that the plaintiff was aware of the existence of said building regulations before they purchased the property. (And I don't see the latter point affecting too much potential claims by the Church, that the regulations were imposed long after the Church owned the building. The possibility of application of these laws vis-a-vis the Church property has always existed.)

I think it's very important in a defense against RLUIPA to distinguish between the every day activities around owning a property versus how first amendment rights are exercised while using that property, and that it is eminently possible to sever the building regulation aspects of property ownership from the first amendment issues involved in using a property. There is very little that is special about the use of a property with regard to first amendment expression.

Using a building in and of itself isn't related to the exercise of first amendment freedoms, unless somehow, building regulations are written specifically to limit expression of first amendment rights.

One clear example would be regulations against signage, and while DDOT caved, I think they could have won a RLUIPA challenge to public space regulations as they relate to the religious organization that erected a permanent monument to the Ten Commandments in the front yard of a rowhouse on 2nd Street NE, a few hundred feet from the rear of the Supreme Court building. HOWEVER, other houses around the city have "permanent" sculptures erected in their front yards, technically public space, and any decent lawyer could have challenged the city over the failure to exercise restrictions on such sculptures in every case. SO maybe DDOT was right to cave, but it's not a good example wrt the Christian Science Church case.

Similarly, in Georgia a city passed a law stating that churches could only locate in buildings that were already used or zoned for religious use. While they did this to reduce the loss of taxable property, you can see how this is an unreasonable interference with religion as this was a selectively imposed regulation. (On the other hand, Montgomery County's general restrictions against campus use within the Agricultural Preserve area of the county, while being challenged on RLUIPA grounds, are likely to be upheld because the zoning restrictions are general involving broad type of use having nothing to do with first amendment issues.)

The same goes, by the way, for discussions in Cleveland Park with restrictions on the use of the Uptown Theater by that McLean church or the people in Ward 4 concerned about the "overconcentration" of churches on 16th St. NW--as long as churches are a matter of right use, enacting new restrictions would be very difficult. In short, RLUIPA challenges in either of these areas would likely be upheld.

Another area would be freedom of assembly, but the use of the church as a place to assemble is not negatively impacted by the addition of historic preservation regulations to the property. Perhaps noise regulations and hours of use regulations (if they existed) could be challenged on RLUIPA grounds, if they were perceived to be selectively applied and/or enforced.

In short, I think that the RLUIPA challenge on the Christian Science Church matter could be easily rebuffed.

HOWEVER, I don't trust the DC Government well enough to mount a strong challenge to the case. Although I have no specific information on which to base that claim, other than statements that people believe that new HPRB members appointed by the current Administration are more likely to favor developer claims against the "imposition" of regulations, and extrapolating that such thinking marks the Administration more generally with regard to historic preservation matters (and therefore the use of scarce resources from the DC Office of the Attorney General to litigate this case).

Note that the reason I care about this so much is that I see how giving churches free passes on property management questions has been debilitating to many neighborhoods in the city, how houses have been deliberately left to rot in order to justify conversion to parking lots, or other churchly use, in ways that do not assist neighborhood revitalization, and that it appears that many churches have a deliberate strategy of nuisance creation around their properties to discourage demand and the influx of new residents, thereby making it easier for churches to continue to acquire nearby properties at lower prices due to the reduced demand as a result of the visible and notorious nuisances that have been created.

Another reason I care is that in commercial districts, if churches are extant they may challenge the issuance of liquor licenses to restaurants (this has been an issue on 9th Street NW), without which it can be extremely difficult for restaurants to succeed and commercial districts to revitalize. (Fortunately, DC no longer has mandatory restrictions of such licensing within a certain distance of churches, which I think is a proper reading of limitations between church and state also embodied in the First Amendment to the Constitution of the United States.)

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Reid and Elise, are you up to working with me on an amicus brief? (Not that any of us have time.)