III. A DEFECTIVE LAW USED TO ABUSE

The United States Constitution provides that if the government forces an owner to sell his property to the government, the government must pay full value. This process is called "condemnation." If the government feels a building is worth saving for the public because of its architectural worth, it should buy the building with public funds. Instead, by landmarking the building, it impairs or destroys the value of the property and achieves the same result as in condemnation but with the owner, not the public, bearing the cost of this public benefit.

The landmarks law provides for a lengthy process, including public hearings, for the legal designation of a building as a landmark. In this process only aesthetic and architectural considerations may be taken into account. No evidence can be admitted concerning the hardship which the designation may impose upon the owner or concerning possible governmental interference with the free exercise of religion or concerning the curtailment or diminution of the spiritual and human services which the Synagogue or Church has been providing to tile community. Only after designation can the owner commence an entirely new and very cumbersome proceeding before the Landmarks Commission reeking to have his building "de-landmarked," and then only on the grounds of economic hardship. Again, no evidence can be admitted concerning constitutional violations or elimination of spiritual and human benefits. In measuring the economic hardship on nonprofit religious organizations, the law requires the Commission to consider the religious building as if it were not tax-exempt in order to determine whether it would then have been economically under-productive. This fairyland approach is a mirage because religious structures were typically never designed in the first place to produce rents or to be used for profitable business purposes. Thus the law denies to religious organizations even the extremely limited relief it allows to commercial organizations.

The landmarks preservation law, as it relates to the nonprofit sector, is thus inherently deficient. While a cumbersome process is available to a commercial owner who needs to have his building de-landmarked on the basis of "hardship" (inadequate profit), the same is not true for the religious and charitable owner. There is little possibility for the Commission to evaluate objectively the "profit/loss" of a nonprofit organization because, by definition, it does not exist. Relief under the present law is hard to come by and very expensive to seek. In fact, we understand that in the 16-year history of the law, no religious structure has ever been de-landmarked on the basis of economic hardship!

When the methods and procedures of the Landmarks Preservation Commission are coupled with the law's deficiencies, outright abuse of the nonprofit sector is the result. Generally, the Landmarks Preservation Commission has willingly accommodated local groups in abusing the law by employing it for zoning purposes rather than for its lawful purpose of architectural preservation. Thus, buildings are landmarked less for reasons of architectural merit than to block any change or development in the neighborhood. People often fear change. But every living creature – including a community – has a need to grow (and, thereby, change) lest it die.

In the specific case of the Church of St. Paul and St. Andrew (on the Upper West Side) no effort was made to consider landmark status (after 14 years of the landmarks law) until the congregation began its study of development possibilities to replace its badly deteriorating structure. The Commission had to search far and wide to find a label for this architectural mishmash that even its designer chose not to have listed among his works in his biographies! The Landmarks Preservation Commission, on November 24, 1981, usurped control of this building by proclaiming it a "unique" example of an architectural style which it called "scientific eclecticism" – a self-contradictory term! Such inventiveness by a public commission raises legitimate questions, at the very least, about the competence with which the public is being served. If. it were not so tragic, it might be almost amusing to note that, until the Commission's recent visit, not one tourist or student of architecture in over 80 years had ever visited the site to admire New York City's unique example of "scientific eclecticism"!

The Chairman of the Landmarks Preservation Commission has privately entreated religious leaders to accept the landmarking of religious structures in order to diffuse any community protest about construction plans while promising speedy action, after designation, to approve demolition or alteration under the Commission's "hardship procedure."

Community Boards are learning how to exploit the landmarks law in abusive ways. Community Board No. 7 in Manhattan, citing the "sudden" loss of All Angels Church (after eleven years of very public financial agony), recommended the designation of the Church of St. Paul and St. Andrew only when its interest in redevelopment became known. The Community Board, early in 1980, prop red a grossly unconstitutional plan which would have forced every Synagogue and Church in the District to publish in minute detail its finances and operations, including lists of all capital and current assets, building utilization patterns and the value of all objects of art. The plan, revealingly entitled by the Community Board's Landmarks Sub-Committee "Preserving Neighborhood Houses of Worship, their Congregations and Social Programs: New Frontiers in Community Planning," (emphasis added) was dropped after the Committee of Religious Leaders pointed out that the landmarks law was enacted for architectural preservation, not for "community planning" (zoning).

Community Board No. 5, Manhattan, convened hearings on a proposal for the redevelopment of St. Bartholomew's Parish House – even before the congregation had an opportunity to make its own decision on the project. The several City Councilmen in Manhattan also moved quickly to express a prejudicial view prior to the congregation's action. Councilman Edward Wallace, for example, is using his office to mail voluminous propaganda in opposition to the St. Bartholomew proposal – including a fund raising .appeal from "The Committee to Oppose the Sale of St. Bartholomew's Church, Inc." (The impropriety is doubled when one notes that it has never been proposed to sell St. Bartholomew's Church!)

Another defect in the landmarks law which encourages arbitrariness, irresponsibility and abuse is that it gives any person or group the right to petition for the landmarking of a Church or Synagogue and to speak and present evidence at the landmarks hearings just as if they were the owners of the building, whereas in fact they have no interest in the mission of the congregation, have never contributed to or personally served in its ministries, care nothing for the people it serves and are oblivious of the service which the religious organization has rendered to people in the community for decades or even generations. Suddenly all this is counted for naught and they are given the right to impede those ministries by fossilizing a building which has never had any reason to exist other than to promote those ministries – a building for which they never even gave a dime to construct or maintain. Small wonder that the Synagogue or Church takes umbrage at the sudden interest all these otherwise unknown people display in the previously unnoticed "beauty" of their congregation's building – usually as a pretext for preventing lawful development of the site – which is not the purpose of the landmarks preservation law.

The law provides that building and demolition permits are to be denied only after a building has been legally designated a landmark. But the Landmarks Preservation Commission asserts its right to block the issuance of building and demolition permits prior to designating a building as a landmark and, apparently, even prior to the legally required public hearing on the matter. The developer who purchased the Seventh Day Adventist Church on West 79th Street in Manhattan (formerly the Mt. Nebo Synagogue) was denied a demolition permit in December, 1981, when the building was not a designated landmark, was not in an historic district and, insofar as the public record reveals, had not even been the subject of any landmark hearing. Nevertheless the Department of Buildings placed a telephone call to the Landmarks Preservation Commission upon receipt of the application for a demolition permit, and the permit was denied. Is this "extralegal" power to be applied against all present or former religious buildings? By what authority may a routine permit be denied to the owner of a nonlandmarked building, seeking to deal with his property as he is lawfully entitled to do? Is the Landmarks Preservation Commission above the law?

Simply in the routine exercise of its duties under the current law, the Landmarks Preservation Commission works hardships on religious organizations which are then compelled to petition it for relief. Increased construction costs, professional fees for architects and attorneys to plead before the Commission, and a variety of indirect costs (e.g. continued maintenance and operation of an outmoded and energy inefficient facility) place an incredible burden on the Synagogue and Church. This amounts to the officially-mandated misappropriation of funds from essential functions of ministry to functions of government never authorized by law. Some additional examples follow:

1) Conservative Synagogue of Fifth Avenue (East 11th Street, Manhattan): This Synagogue is in a small building which was originally built as a carriage house and, in 1923 converted to a residence. It is not landmarked by specific action, but it is located within the Greenwich Village Historic District and ‘ therefore is compelled to comply with all landmark requirements.

The congregation has proposed to extend the existing building and has engaged an architect who lives in the community and has had extensive experience in designing religious buildings. Extensive plans were developed which incorporate both the needs of the congregation and consideration for the surrounding structures in the District. The local Community Board endorsed the proposal. After several sessions with the Landmarks Preservation Commission (requiring thousands of dollars in costs to the congregation), the Commission's architects criticized the design arbitrarily, requesting the use of inappropriate and expensive building materials. The plans must now be redrawn at considerable additional expense and delay, only to be again submitted to the vagaries of the Commission's architects who assume the role of aesthetic architectural laureates.

2) Spencer Memorial Presbyterian Church (Montague Street, Brooklyn): This Church was located in the Brooklyn Heights Historic District. The congregation was dissolved in 1975 and the property offered for sale by the Presbytery of New York City. Because the building was vacant (and thus no longer actually in use for religious purposes), the property was returned to the tax rolls. A purchase agreement was reached with the YMCA in Brooklyn Heights which proposed to retain the exterior facade of the building and make some changes in the roof area to accommodate a gymnasium and other community facilities. In the face of objections from some groups in the community to this proposed use, the Landmarks Preservation Commission refused to permit this plan. A revised proposal, which eliminated the roof alterations, was resubmitted and main rejected by the Commission. The YMCA, now exhausted by the process and its lack of affirmative response, withdrew its purchase offer. The property was subsequently sold under an unconditional contract to a private developer at a significantly lesser sale price. The developer promptly obtained approval from the Landmarks Preservation Commission to install apartments and shops in the building, retaining the exterior facade. The end result: The Church was deprived of fair value for its property; the YMCA, a nonprofit charitable organization, was deprived of the opportunity for necessary expansion of its facilities; the community was deprived of these expanded services; a private developer made all the profit – all to preserve the she-11 of a former Church. Whom is the Landmarks Preservation Commission really serving?

3) Church of St. Paul and St. Andrew (West 86th Street, Manhattan): The United Methodist congregation which owns this building is faced with significant costs to repair a continually deteriorating building of questionable architectural design. Nearly half of the church's annual budget is devoted to building maintenance and heating cost, much of which would be unnecessary with a new, energy-efficient structure.

The congregation has the opportunity, through a developer, to lease its land for a high-rise apartment building in which it would occupy ground-level space for the congregation's ministry. The zoning law permits this type of development. The arrangement would enable the congregation, for the first time in decades, to have facilities which would be adequate for its ministry and a rental income that would help provide more charitable services in the community. Moreover, the apartment portion of the complex would be taxed at the usual rates, providing significant new income to the City and badly needed housing.

Despite the congregation's strong objection, the Landmarks Preservation Commission voted to designate the building in November, 1981. At great additional cost, the congregation must now continue to pour its funds down the drain of its present structure and bear additional heavy expense and legal fees in pursuing, its need to acquire an adequate building for itself and funding for its ministry.

4) The Village Church, Presbyterian (13th Street, Manhattan): Located in the Greenwich Village Historic District, this congregation was dissolved in 1978 and the property offered for sale by the Presbytery of New York City. Because it was vacant it was restored to the tax rolls. The landmark restrictions on the property made its sale to other religious institutions undesirable and its sale to others very difficult. After three years, the property was sold (1981) to a private developer who converted the community house into apartments. These delays caused the Presbytery to incur heavy property taxes and management expenses and severely restricted its options in locating suitable purchasers who, understandably, are reluctant to get involved with the restrictions and time-consuming processes of the Landmarks Preservation Commission.

5) St. Bartholomew's Church (Park Avenue, Manhattan): This has become a cause celebre because of the vitriolic public debate which had taken place even before the congregation had agreed upon any specific proposal. The local Community Board found nothing unusual in condemning a development proposal which was not properly before it, and City Councilmen were disposed to hold a press conference denouncing this plan. These acts occurred weeks before members of the congregation could consider the proposal. The proposal, subsequently approved by vote of the congregation, would result in the demolition of the landmark parish house and the construction of an office tower on the site, containing Church facilities and preserving the parish house facade.

The decision as to the utilization of the Church's resources should be made by those with responsibility for the Church's ministries, not by outsiders having no interest in the Church or those it serves.

6) Yeshiva Chofetz Chaim (West 87th Street, Manhattan): This school is compelled to maintain its landmarked building at considerable expense. The owner's inability to modernize has become a serious impediment in carrying out its religious and educational purposes and, indeed, threatens its future existence.

7) St. Paul's Roman Catholic Church (Warren Street, Brooklyn): This parish had an elementary school which, due to dwindling enrollment, ceased to operate as a school. The desperate financial straits of the Parish together with the decrease in the size of the congregation did not permit the Church to expend the exorbitant cost of paying taxes on and maintaining a vacant building. A contract to sell the building to a developer was made in September, 1979. The building was a landmark only because it was located within the Cobble Hill Historic District. Therefore, it was necessary for the developer and the Church to apply to the Landmarks Preservation Commission for approval of the development plans. While approval was eventually obtained, the time that was expended obtaining it proved fatal to the transaction. By the proposed closing date in March, 1981, the marketability of the type of development contemplated by the developer had vanished. The developer was unable to close on the contract and thereby defaulted. The Church now finds itself in the position of trying to locate a new purchaser in an unfavorable market lest it be saddled with maintenance costs and the property taxes which will be assessed on a useless building. It is clear that without the requirement of obtaining approval of the Landmarks Preservation Commission the transaction would have been completed: The property would have been sold, returned to the tax rolls of the City of New York at full value, and the Church would have obtained the necessary funds to continue its vital mission and ministry in the Cobble Hill area.

8) Grace Church School, Episcopal (4th Avenue, Manhattan): The School, located in the Greenwich Village Historic District, made plans in 1975 to replace its clergy house with a new building providing a gymnasium and a community center. The proposed structure was designed carefully to blend appropriately with the surrounding community. The Landmarks Preservation Commission rejected the plans, requiring that the facade of the old clergy house be retained. The Commission "worked" with the School to develop a "plan" to achieve its ends. It is reported that the facility which the School was forced to construct has proven to be considerably less than adequate for its purposes and needs.

By no means has this been an exhaustive discussion of all the problems with the landmarks preservation law and the Commission which implements it. One might consider the situation if the landmarks law had been in effect at the turn of the century: the City would now be studded with useless religious buildings from Wall Street through Midtown and to the upper reaches of Manhattan. Not only would these buildings be occupying land needed for other uses, but they would be draining religious resources in ways that would undermine ministry and service to the people of our community.

Questions are raised within the architectural profession regarding the validity of the critical system employed by the Landmarks Preservation Commission. Its decisions appear often not to regard the owner's needs, timetable, or finances, or the right of those of our citizens who so desire to receive religious and human ministry. They keep property off the tax rolls even after it no longer is suitable for religious purposes. They divert funds contributed for religious uses to architectural preservation.

The landmarks law destroys hope – the hope of a small congregation that it can grow in size and, despite its small numbers, expand its ministries by the efficient use of its resources, including the fair value of its real estate. The law destroys the hope of a congregation that it can free itself from the crushing burden of maintenance and heating of a structure which has outlived its useful life and can no longer serve the purposes for which it was originally built.