The constitutional questions which arise as a result of "landmarking" church property are twofold. First, is the landmark designation of religious property an invalid exercise of the police power under the due process clause? Second, and more important, is the constitutional right of free exercise of religion violated by such a designation?

The State has the power to regulate the use of private property for the common good. The constitutional difference between regulation and confiscation is that just consideration must be paid only if a confiscation or a "taking" is found. The distinction between these two powers is, at times, difficult to determine. In Lutheran Church v. City of New York, 35 NY2d 121(1974), Judge Gabrielli stated that:

... either the government is acting in its enterprise capacity, where it takes unto itself private resources in use for the common good, or in its arbitral capacity, where it intervenes to straighten out situations in which the citizenry is in conflict over land use or where one person's use of his land is injurious to others. (Sax, Taking and the Police Power, 74 Yale L.J. 36,62,63); 35 NY2d at 128.

However, a regulation may be so burdensome on property that it becomes in effect a "taking" or "confiscation" of the economic value of the property. French Inv. Co. v. City of New York, 39 NY2d 587(1976). Such a regulation is often deemed confiscatory but is in fact an unconstitutional exercise of the police power violating the Fifth and Fourteenth Amendments|*| to the United States Constitution and Article I, Sections 6 and 7 of the New York State Constitution.

Grand Central Station was designated as a landmark and the owners were prohibited from erecting the desired fifty story building over the existing Station. New York City's landmarks preservation law was found to be valid by a majority of the United States Supreme Court in the case of Penn Central Transportation Company v. City of New York, 438 U.S. 104, 57 L. Ed. 2d 631, 98 S.Ct. 2646, Rehearing Denied 58 L. Ed. 2d 198, 99 S.Ct. 226(1978). Although the majority concluded that the law was constitutional, a determination was necessary as to the particular piece of "landmarked" property. "We now must consider whether the interference with appellants' property is of such magnitude that ‘there must be an exercise of eminent domain and compensation to sustain [it].' Pennsylvania Coal Co. v. Mahon, 260 U.S. 413, 67 L. Ed. 322, 43 S.Ct. 158(1922)." 438 U.S. 104, at 136. The court found that this commercial property's present uses were not interfered with and therefore the designation was constitutional.

The New York Court of Appeals found a landmark designation of church property invalid in Lutheran Church v. City of N.Y., 36 NY2d 121(1974). The Lutheran Church, in 1942, purchased what had been the residential mansion of J. P. Morgan. The Church alleged that the mansion had become totally inadequate for the Church's purposes. This allegation was found to be virtually uncontested. The Church decided that the mansion be demolished and an office building be built in its place. The landmark designation of the mansion blocked these goals of the Lutheran Church.

The Court, equating landmarking to zoning, stated that a zoning ordinance is invalid if it prohibits the owner the use of the property for which it is adapted. An actual physical confiscation is not necessary before a constitutional violation of due process can be found. 35 NY2d at 129. The conclusion of the Court is that:

[The Landmark Commission's attempt] to force plaintiff to retain its property as is, without any sort of relief or adequate compensation, is nothing short of a naked taking . . . the commission, without any move toward invoking the power of eminent domain, is attempting to add this property to the public use by purely and simply invading the owner's right to own and manage . . . .

 . . . .

 . . . The power given the municipality . . . directly violates plaintiff's rights under the Fifth and Fourteenth Amendments to the United States Constitution and section 6 and 7 of article I of the New York Constitution. 35 NY2d at 132.

Interesting to note is the fact that the Court, in Lutheran Church, supra, avoided the issue of a possible breach of the First Amendment of the United States Constitution and Article I of the New York State Constitution which pertain to the free exercise of religion.

The New York Court of Appeals in the case of Ethical Culture v. Spatt, 51 NY2d 449(1980), found the landmark designation of the religious property to be not confiscatory and therefore was faced with the constitutional issue of free exercise of religion. The New York City Landmarks Preservation Commission designated the meeting house of the society of Ethical Culture of the City of New York as a landmark. The meeting house had been built on Central Park West as a permanent home for the society's religious and charitable activities.

The Society opposed the landmark designation from the initial proposal up to the Court of Appeals. The battle began with the required public hearing. Later, the Society instituted an Article 78 Proceeding which was converted into a proceeding which sought declaratory judgment. The lower court decided the action in favor of the Society finding the designation unreasonable, confiscatory and therefore unconstitutional. The Appellate Division reversed the lower Court's decision and the Society appealed to the Court of Appeals.

The Society claimed and the court agreed that the designation would restrict the Society's realization "of the full economic value" of the Central Park West property, since the development would require the demolition of the existing structures. The court cited numerous cases including Penn Central Transportation Co. v. City of New York, supra, to support its finding, that the due process clause of both the United States and New York Constitutions had not been violated.

The Lutheran Church decision was differentiated, thereby avoiding the necessity of overruling, that earlier decision. The Lutheran Church's needs were such that the court found the landmarked mansion to be totally inadequate and the church had only two alternatives, to build on or to abandon the property. The Court believed that although the Society's meeting house was no longer suitable for its present needs, alternative uses might exist, and there lies the distinction, albeit a very weak one, between the two cases.

The issue of free exercise of religion was dealt with in one paragraph of the decision. 51 NY2d at 456. The Society's entitlement to First Amendment protection was conceded but ". . . this does not entitle it to immunity from reasonable government regulation when it acts in purely secular matters," 51 NY2d at 456. The language of the court in setting the standard for permitting landmark designations is especially disturbing. The court explicitly limits a religious organization's due process argument and thereby opens the door for future infringement of free exercise of religion. Commercially owned property has a distinct advantage over religiously owned property, as the damages to one's religious exercise can not always be expressed in terms of dollars. The Court of Appeals said:

. . . Charitable organizations are not created for financial return in the same sense as private businesses; for them the standard is refined to permit the landmark designation restriction only so long as it does not physically or financially prevent, or seriously interfere with, the carrying out of the charitable purpose. Ethical Culture v. Spatt 51 NY2d 449 at 454,455.

It is disturbing to note that the Court seems to feel that the Constitutional prohibition against governmental interference with religion applies only to serious interference. It does not appear that this interpretation is supported by previous judicial pronouncements. Although the Court claims that the free exercise of religion is not violated, the judiciary will now be required to violate the separation of church and state each time a question arises as to what is a "serious" interference.

As previously stated, there is much that can be said for the position that the courts inadequately considered the landmarking of religious structures as a form of deprivation of religious freedom. The courts have not yet fully appreciated the magnitude of this violation of the Constitution. In the Ethical Culture case this is clearly shown by the Court's devoting only one paragraph in an otherwise lengthy decision to the free exercise of religion and its insistence upon using the term "charitable" organization as opposed to "religious" organization when deciding the case.

What is needed then is a well-planned case fur presentation once again to the New York Court – one that clearly sets forth the fact that landmarking is not just a question of financial inconvenience but actually an unconstitutional infringement of the very fabric of the free exercise of religion.

|*| The Fourteenth Amendment to the United States Constitution makes all relevant provision of that Constitution applicable as against State governments.