Rebuilding Place in the Urban Space

"A community’s physical form, rather than its land uses, is its most intrinsic and enduring characteristic." [Katz, EPA] This blog focuses on place and placemaking and all that makes it work--historic preservation, urban design, transportation, asset-based community development, arts & cultural development, commercial district revitalization, tourism & destination development, and quality of life advocacy--along with doses of civic engagement and good governance watchdogging.

Wednesday, June 19, 2013

Holding on DC historic preservation matter concerning a church schools us on both RLUIPA and "economic hardship" claims

church, 700 A Street NE, DCA church denomination, World Mission Society, bought a "used" church present in the Capitol Hill Historic District, located at 700 A Street NE, in Washington, DC (building pictured above, from Google Street View), to start a congregation in the DC metropolitan area.

The church building has "graven images," that is to say, stained glass windows depicting religious figures and stories, and so the church wanted to remove the windows.  No said the DC Historic Preservation Review Board.

The church appealed, on two grounds.  First, that not allowing the windows to be removed is an unreasonable restriction on their First Amendment rights to practice religion and the separation of church and state clause. The RLUIPA--Religious Land Use and Institutionalized Persons Act--is a federal law designed to provide "equal treatment" to religious institutions with regard to local building regulations, and this act was referenced in the appeal.  Second, they made the claim that the restriction created an "economic hardship."

The opinion by the Mayor's Agent (in effect a "Court of Appeals" vis-a-vis the Historic Preservation Review Board, although the plaintiff could still appeal the decision to local or federal courts) is a very careful application of the relevant laws and regulations.

The foundation of the ruling has to do with the fact that the Capitol Hill Historic District is what we might call a "pre-existing condition," and it is then incumbent on any property purchaser to do due diligence concerning how the historic preservation regulations may impact on the plans a purchaser might have for a property.

So, while many jurisdictions end up interpreting RLUIPA to mean that churches get to pierce local building regulations for just about anything they say that has to do with practicing religion, the opinion takes an opposite stance.  Since the preservation regulations regulate facades present to the street and windows for all properties within a historic district, the holding argues that a church is not treated any different from any other property, when such regulations are applied.

And with regard to claims of economic hardship with regard to historic preservation regulations, the denial of the claim was based on the fact that applying the building regulations equally to a church, regardless of the  intent of the owner, does not create a hardship.  Therefore, there is no justification for not applying historic preservation/other building regulations to a building, regardless of the use, even if that use is religious.

As a non-lawyer, the opinion is an important read as well, because it makes very clear on how such narrow grounds and interpretations legal arguments are made.

Note that if the historic district designation hadn't been a pre-existing condition, the findings may have been different, although it would have been impossible to have the same fact pattern.  (Meaning that the church would have already removed the windows.  I don't see how an action would have been brought against the church to put them back in, upon the creation of a historic district.)

Labels: , , , , ,


Post a Comment

<< Home