Church Landmarking
By Richard R. Hammar, J.D., LL.M., CPA
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A number of municipalities have enacted ordinances designed to protect and preserve buildings having historic or cultural significance. Such ordinances often are referred to as “landmark” laws. Occasionally, municipalities attempt to block the sale or demolition of church property on the basis of landmark ordinances. Of course, churches respond by claiming that use of a landmark law in such a context violates the first amendment's guaranty of religious freedom. To illustrate, a federal appeals court ruled that a New York City “landmark” law that prevented a church from developing its property did not violate any of the church's constitutional rights.1 St. Bartholomew's Church is a Protestant Episcopal Church located in New York City. The church sanctuary was constructed in 1919. Next to the sanctuary is a 7--story community house built by the church in 1928. The community house provides a variety of services, including athletic facilities, a theater, a preschool, meeting rooms, office space, and sleeping quarters for the homeless. In 1967, the church and community house were designated as “landmarks” by the city, meaning that they could not be demolished without city approval. The city may grant approval if it finds that a failure to do so would “seriously interfere” with a charity's ability to carry out its purposes.
In 1983, the church sought permission to tear down the community house and erect in its place a 59--story office tower. This application was denied by the city as inappropriate. In 1984, the church sought permission to tear down the community center and build a 47--story office tower. This application was also denied. The church claimed that the denial of its request to demolish its community center and construct an office building violated its constitutional rights. In particular, it claimed that as a result of the city's actions it could no longer carry out its religious mission and charitable purpose because the existing facility was no longer adequate and the church could not afford the sums necessary to remodel the present building to make it adequate. The court rejected the church's claim that the city's actions violated the first amendment's guaranty of religious freedom, or the fifth amendment prohibition of a “taking” of the church's property without “just compensation.” The court acknowledged that applying the landmarks law to the church “has drastically restricted the church's abilities to raise revenues to carry out its various charitable and ministerial programs.” However, this burden did not constitute a violation of the first amendment's guaranty of religious freedom. The court emphasized that decisions of the United States Supreme Court have clarified that “neutral regulations that diminish the income of a religious organization do not implicate the free exercise clause.” The first amendment is violated only if “the claimant has been denied the ability to practice his religion or coerced in the nature of those practices.”
The court also rejected the church's claim that the landmark law so severely restricted its ability to use its property that it constitutes a confiscation of property without just compensation in violation of the fifth amendment to the United States Constitution. The fifth amendment specifies “nor shall private property be taken for public use without just compensation.” The court observed:
[T]he constitutional question is whether the land--use regulation impairs the continued operation of the property in its originally expected use. We conclude that the landmarks law does not effect an unconstitutional taking because the church can continue its existing charitable and religious activities in its current facilities. Although the regulation may freeze the church's property in its existing use and prevent the church from expanding or altering its activities, [Supreme Court rulings] explicitly permit this. . . . [T]he deprivation of commercial value is palpable, but . . . it does not constitute a taking so long as continued use for present activities is viable.2
However, in another case the Washington Supreme Court ruled that a municipal landmarking law violated a church's constitutional right to religious freedom.1 The city of Seattle adopted an ordinance giving the city authority to declare any building to be a landmark. The ordinance was designed to preserve and protect those sites reflecting significant elements of the city's cultural or historic heritage. Buildings designated as a landmark by the city could not be structurally altered without city approval. The city designated a church to be a landmark, and the church sued the city arguing that the landmarks ordinance violated the church's constitutional right to freely exercise its religion. Specifically, the church claimed that its designation as a landmark impaired its religious freedom in the following ways: (1) city approval and bureaucratic “red tape” would be required prior to making any structural alterations in the sanctuary; (2) a secular government had the authority to grant or deny a church's request to develop its worship facility; (3) the value of the church property was decreased significantly by the landmark designation; and (4) the ability of the church to sell its property was diminished.
A trial court rejected the church's claims, but the case was then appealed directly to the state supreme court which agreed with the church's position. The supreme court began its opinion by emphasizing that its decision “will be welcomed throughout the United States” since it would be the first decision to address the application of city landmark laws to churches. The court noted that for a church to establish a violation of its constitutional right to freely exercise its religion, it must demonstrate that “the government has placed a substantial burden on the observation of a central religious belief or practice” and that the government's conduct is not justified by a “compelling governmental interest.” The court concluded that the city's landmark law did place a substantial burden on the church's religious practices, and that no compelling governmental interest justified the burden: “The practical effect of the [ordinance] is to require a religious organization to seek secular approval of matters potentially affecting the church's practice of its religion.” This “creates unjustified governmental interference in religious matters of the church and thereby creates an infringement on the church's constitutional right of free exercise.” The court concluded: “We hold that the preservation of historical landmarks is not a compelling state interest. Balancing the right of free exercise [of religion] with the aesthetic and community values associated with landmark preservation, we find that the latter is clearly outweighed by the constitutional protection of free exercise of religion and the public benefits associated with the practice of religious worship within the community.”
For related information on this topic see the following articles:Regulation of Charitable Solicitations
Limitations on Charitable Giving
Federal and State Securities Laws
Judicial Resolution of Church Disputes
The Civil Rights Restoration Act of 1987
Americans with Disabilities Act
Political Activities by Churches and Other Religious Organizations