Queens Federation of Churches

Ministry vs. Mortar: A Landmark Conflict

by the Reverend N. J. L'Heureux, Jr.[*]
Executive Director, Queens Federation of Churches
Presented to the
Second Conference on Government Intervention in Religious Affairs [**]
September 12 - 14, 1984

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The uncritical first impression of the average person is that the preservation of historic buildings is a good thing. Indeed, the preservation movement which affirms our heritage in culture, history and architecture has made a worthwhile contribution to community life. The legal manifestation of preservationism is a process called "landmarking" whereby certain buildings or whole districts are singled out as structures having important aesthetic or historic characteristics which warrant their preservation under the regulatory control of a government agency.

The exercise of government authority over private property has a long history in this nation. Zoning regulations, which apply equally to all properties within a particular geographical zone, set limits on height, bulk, set-back, and the use of property. Preservationist regulations under various local landmark ordinances, on the other hand, apply selectively to individual properties on the basis of more subjective qualities of design, ambience, aesthetics, etc. These are a relatively new collection of laws and it is not unexpected that the conflicts arising out of the application of landmarking regulations would appear today as new phenomena.

As applied to churches, synagogues, and other religious institutions, government regulations on property have always been less restrictive than those applied to other property. For example, in many jurisdictions, even the most restrictive residential zoning district may not exclude a church or synagogue building. In New York State, even the so-called "police powers" must yield to the right of a religious congregation to building in a residential area. The New York State Court of Appeals could not have been more clear in ruling in the Matter of Westchester Reformed Temple v. Brown:

We have said that religious structures cannot be excluded, directly or indirectly, from residential zones. We have said that factors such as potential traffic hazards, effects on property values and noise and decreased enjoyment of neighboring properties cannot justify the exclusion of such structures.

Religious structures enjoy a constitutionally protected status which severely curtails the permissible extent of governmental regulation in the name of the police powers . . . . [1]

The police powers of the State are the legal basis on which zoning laws and the newer preservation and landmarking laws are set. The case law respecting landmarking is somewhat slim, although it will grow rapidly as more owners are suing for relief from what they find to be unfair and oppressive burdens imposed by landmark regulation.

Our concern here is to examine the effect of these landmarking regulations on religiously owned property and to assess the appropriateness of this type of regulation in light of the free exercise clause of the First Amendment.

The case which provoked the religious leaders in New York City to study the potential for conflict between church and state over landmarking was the proposed designation of the United Methodist Church of St. Paul and St. Andrew in 1980. Located on Manhattan's Upper West Side (86th Street and West End Avenue), the structure was built in 1897 by Architect R. H. Robertson. In the late 1960s, the congregation undertook a major restoration of the building's facade at a cost of some $100,000. Within a few short years, church leaders were alarmed at the rapid deterioration of the newly-restored building. An engineering study subsequently determined the cause: High levels of automobile exhaust emission were producing an acid effect on the terra cotta limestone blocks with which the edifice was built.

The Church's physical plant, apart from this irreversible exterior erosion, has a multitude of internal problems as well. The worship space is over four stories tall and designed to seat 1,300 on a main floor and in a horseshoe balcony; average worship attendance runs to 150. Offices are cramped into oversized closets tucked in corners of a building clearly designed to accommodate activities of a previous age. Collapsing plaster, a result of the building's current inability to resist the elements, is a safety as well as an aesthetic concern. The expense necessary to stabilize the building and to make it serviceable and energy efficient for the church's purposes are estimated in the millions. In 1980, the congregation had endowed funds of $60,000 which were being drawn down to cover deficits on an annual operating budget of approximately $105,000 – over half of which was spent on the building.

Contrasting with the structural and financial woes is the active ministry which the Church of St. Paul and St. Andrew provides. In addition to worship and programs of Christian Education, the church sponsors an ecumenical food pantry called the West Side Hunger Project, one of the City's larger senior citizen centers with a daily luncheon program feeding 250, a campus ministry to Columbia University students, scout groups, AA, counseling, among other service ministries.

The membership of the church affirmed its intent to continue its ministry in that community when it established a Futures Committee in 1975 to deal with the difficult problems presented by its crumbling building. After examining several options over a four year period, the Committee recommended that reconstruction on that site would be the most desirable – and probably the only – solution. Restoration or renovation of the existing building would be far too costly and the church had no realistic means of raising the millions of dollars which such a restoration project would require. Under the Committee proposal, the present building would be replaced with a new, high-rise facility that would include income-generating apartments above a few floors of church space, thereby providing a means to finance the new construction and to provide some income for the continuation and expansion of the church's ministry to the community. Any building which might be erected under this proposal would be fully within the applicable zoning regulations for the area. The portion of the structure not actually used for religious purposes would, of course, be subject to local property taxes.

Churches in urban centers across the nation are faced with problems quite similar to those which have confronted the Church of St. Paul and St. Andrew. But if the New York City experience becomes the national norm, the problems of financing building and ministry plans will be unbelievably complicated by the aggressive intrusion of the preservationist community, armed with their landmarking procedures and regulations.

In 1979, the local Community Board No. 7, an agency of City government,[2] included the plans of the Church on its agenda. After several months of discussion, the Landmarks Sub-Committee (of the Community Board) introduced a resolution to the full Board in December, 1979, recommending the landmarks designation of the Church building and its adjacent parsonage. One significant omission in this process was that no member or officer of the Church had been contacted by the Community Board or its Landmarks Sub-Committee prior to the introduction of the resolution at a public meeting. The Church was subsequently advised of the resolution and opposed it vigorously, but to no avail.[3]

The New York City Landmarks Preservation Commission, responding to the local Community Board resolution, called a public hearing for March 11, 1980, to consider the designation of the Church's property. Additional hearings were held in May and July before cries of "Help!" reached the ears of the City's religious leadership. Meeting with the Committee of Denominational Executives, the bishops and chief regional officers of the major denominations, the Rev. Robert Richmond laid out the concerns and experiences of his congregation as it was drawn deeper and deeper into the morass of government regulation by landmarking. The Pastor reported the formation of an ad hoc group which called itself "The Friends of St. Paul and St. Andrew" which was soliciting funds and support to "preserve" the church. "Friends," it was reported, did not include any member, active constituent, or contributor of the Church – and "preserve" referred, of course, not to the Church as the Body of Christ, but to the church's building as an architectural monument. Like the Community Board, "Friends" took its action without any prior consultation with the leadership of the Church. Motivation for the opposition appeared to be the prospect that construction by the church would cause residents of cooperative apartments in the adjacent building to lose their window view of the Hudson River.

The issue was referred to the Committee of Religious Leaders in the City of New York, an interfaith body whose membership includes official representatives of the Roman Catholic Archdiocese of New York and the Diocese of Brooklyn, the Council of Churches of the City of New York, the Queens Federation of Churches, and the New York Board of Rabbis. At its September, 1980, meeting, the Committee of Religious Leaders voted to establish the Interfaith Commission to Study the Landmarking of Religious Property. Members of the Interfaith Commission included attorneys, an architect, and clergy who were each named by the various faith groups. The Final Report of the Interfaith Commission was adopted by the Committee of Religious Leaders on January 26, 1982, and subsequently published and released on March 3, 1982. Much of the analysis of the New York City landmarks law and procedures comes from the work of the Interfaith Commission which was chaired by the author.

New York City first adopted a local landmarking law in 1965 in the aftermath of a public outcry over the demolition of the old Pennsylvania Station. Under this law, any structure or place "any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation" may be designated by the Landmarks Preservation Commission as a "landmark."[4] While the interiors of public buildings may also be designated as landmarks, the law's solitary exemption is the interior of a place of public worship.[5]

The Interfaith Commission concluded that these standards by which buildings are designated are subjectively vague; indeed, the minimal quality required for landmark designation is merely "special character." The Final Report observes that

. . .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.[6]

In New York City, local organizations – both governmental and private – have seized on the landmarks law to accomplish what they could not accomplish legally under zoning law: a site-specific prohibition on development or "spot zoning."[7] It is settled law that spot zoning is unconstitutional on the basis of the equal protection clause of the Fifth Amendment. The same result as spot zoning – freezing development – can now be obtained by action of the Landmarks Preservation Commission in determining that a building's "special character" requires it to be preserved as a "public benefit." Under landmarking, however, the building's owner and not the public is required to pay the full costs of maintaining this "public benefit."[8]

The New York City law also permits the designation of whole areas as "historic districts" on essentially the same vague criteria as obtain for the designation of an individual landmark.[9] As of this writing, 44 such districts have been designated with approximately 20,000 buildings under regulation. Just over 700 individual landmark sites have been designated (each site may include more than one building), including over 100 churches and synagogues and their associated buildings. The magnitude of the problem is shown by these numbers. Over 14% of the site-designated landmarks are religious buildings. Religious buildings, on the other hand, comprise less that 0.34 of 1% of the buildings in the City of New York. In other words, churches and synagogues are 42 times more likely to be designated as landmarks than any other buildings in the City! While the architectural style of places of worship may well seem to justify aesthetic attention, the burdens of preservation, nonetheless, are disproportionately imposed on religious institutions.

What happens when one is summoned to a hearing before the Landmarks Preservation Commission? The Commission's staff has already done its homework. A full slide presentation on your building, together with a detailed historic and architectural record, has been prepared. You learn that the eleven members of the Commission have previously reviewed all of this material before voting to place the matter on a hearing calendar. Had the commissioners considered your building to be lacking the requisite "special character," there would have been no public hearing on the matter.[10]

At the public hearing, anyone may speak or present material for the record. Under the law, only matters pertaining to the historic, cultural, architectural, or aesthetic elements are to be considered in determining whether or not the building has the requisite "special character." It has never been difficult to obtain architectural testimony to argue the absolute need to preserve anything [11] – from sewage treatment facilities, to gasoline stations, to subway tunnels. An architectural historian who testifies frequently before the New York City Landmarks Preservation Commission once stated flatly that he could make a case for landmarking 90% of the buildings south of 96th Street in Manhattan. The missing 10% are, undoubtedly, those which have not yet attained the venerable age of 30 required by the law.

Notably absent from the designation process is any consideration of the impact, financial or otherwise, upon the owner. Those issues are permitted to be raised only after designation through a complicated set of various appeals proceedings culminating in the so-called "hardship process." It should be understood clearly that the law permits the Commission to require the building owner, wholly at his own expense, to make any repairs or restoration or alteration only with the Commission's prior approval. Frequently with church or synagogue buildings, repairs may involve requirements to match very expensive original building materials – Italian roof tiles, gold leaf, ornately sculptured detail, etc.

Should you wish to modify the exterior of the building in any way (for example, to install plexiglass to protect the stained glass windows, a room air conditioner, a fence, a sign board, or any more substantial renovation or addition to the building), the Landmarks Preservation Commission must approve. Minor work, which is deemed to have "no effect" on the landmark (such as repainting with the exact same brand and color of paint) is permitted at staff discretion.[12] Any change to the external appearance will, however, require a public hearing before the Commission and a showing that the proposed change is architecturally "appropriate" to the landmark.[13] Again, this is a subjective judgment unguided by clear criteria in the law. Proposals have been rejected because of brick color, size and shape of windows, etc. All of these proceedings are conducted on the surreal plane of the aesthetic, devoid of any fiscal consideration inasmuch as the owner's – and not the Commission's – funds are at stake.

If an alteration is deemed architecturally "inappropriate," an owner must then apply for relief on the grounds of insufficient return, a process commonly called a "hardship." With respect to commercial property, a hardship is deemed to exist if the owner cannot earn a 6% rate of return on the assessed valuation of the property.[14] With property tax assessment in New York City typically pegged at one-third to one-half of the market value, the landmarks law acknowledges a financial hardship if the building cannot earn 2% or 3% of its market value. Economists and business leaders tend to view such minimal rates of return less as a mere hardship than as a harbinger of imminent bankruptcy.

With respect to property owned by a nonprofit corporation, the City's landmarks law provides for hardship relief only if there is a contract for sale or long-term lease of the property and if the owner can establish that the property, if it were commercial, would be incapable of supporting any use which would generate the 6% rate of return on assessed valuation.[15] If a church or synagogue – or a secular nonprofit, for that matter – were to wish to convert its building for its own purposes, the landmarks law simply does not allow that possibility.

The first case to be litigated by a nonprofit organization resulted in a judicially-written test for determining the existence of a hardship for a secular nonprofit. In the Matter of the Trustees of the Sailors' Snug Harbor in the City of New York, the Appellate Division noted the criterion of inadequate return in establishing hardship for a commercial property and then said:

A comparable test for a charity would be where maintenance of the landmark either physically or financially prevents or seriously interferes with carrying out the charitable purposes. In this instance the answer would depend on the proper resolution of subsidiary questions, namely, whether the preservation of these buildings would seriously interfere with the use of the property, whether the buildings are capable of conversion to a useful purpose without excessive cost, or whether the cost of maintaining them without use would entail serious expenditure – all in the light of the purposes and resources of the petitioner.[16]

The Landmarks Preservation Commission considers this judicial test to be the principal test for hardship for all nonprofits – secular or religious [17] – even though it has never been incorporated into the landmarks law nor even into any administrative code or set of written policy procedures.

Under this hardship test, it should be seen that a nonprofit bears a far heavier burden than any carried by a commercial property owner. While the latter needs to establish that an insufficient rate of return is earned on the landmarked building, a nonprofit owner is expected to show that the preservation of its building as a landmark threatens its ability to continue with its charitable purposes. In effect, the nonprofit must face exhaustion of all its resources before it could meet the requirements of this judicial hardship. The expectation that endowments must be exhausted and that other property resources be encumbered in order to pay for the preservation of a landmark is unreasonable for any owner. But when the owner is a church or synagogue, this forced diversion of assets which were contributed for religious ministry to feed the government-imposed priority of architectural preservation becomes an intolerable interference of government with religion in violation of the First Amendment.

The threshold requirements for bringing a hardship proceeding before the Landmarks Preservation Commission are that the church or synagogue discuss with the Commission its religious purposes and priorities and then prove that the landmarked building, as it stands, is no longer adequate for carrying on those purposes. The Commission contends that it does not seek to evaluate the congregation's religious purposes. But the individual commissioners and a variety of their apologists in the preservationist community have asserted that this test is objective and constitutionally permissible because it looks merely at the activities which have historically been conducted in the particular building. That a congregation may choose to engage in different activities – for which the building may not be suitable – as a part of its continuing ministry is clearly prejudiced by this standard. A congregation may, for example, perceive the need to minister to an aging population and decide that its half-empty school building should be altered for use as a senior citizens center. The church or synagogue is put in the position of defending before the government agency the need and desirability of its proposed new ministry to senior citizens which requires these building modifications. There could not be a more direct interference with the free exercise of religion than this: The Landmarks Preservation Commission holds the fate of a congregation's ministry in its hands as it decides whether or not to permit the building modification or redevelopment upon which the new ministry depends.

A landmarks designation of a piece of property makes the aesthetic welfare of that building the top priority of the owner. The synagogue or church with a landmarked building is compelled by law to subordinate the funding of its religious ministry in order to accommodate this governmentally-imposed priority. Thus, the building which was dedicated to the Glory of God for religious ministry becomes a monument to architecture. The other assets of the congregation – all contributed for ministry – must be placed fully at the disposal of this extraneous preservationist priority.

An interesting illustration of the way in which landmarking and, especially, its hardship process actually operate in New York City is provided by the case of the former Mt. Neboh Synagogue in Manhattan. In the late 1960s, Rabbi Philip Hait had actually requested that the synagogue building be designated as a landmark on the assumption that such an "honor" would benefit the congregation financially and in prestige. His efforts were rebuffed at the time by the Commission and its staff. As the years went by, the congregation grew smaller and, eventually, in the late 1970s, sold the building to a Seventh-day Adventist congregation. Costs of operating the large facility proved too great and that congregation offered the property for sale in 1981. One prospective purchaser, Alexander Edelman, a major real estate developer in New York, was interested in demolishing the former synagogue building and constructing an apartment complex on the site. In July, 1981, knowing something of the vagaries of the Landmarks Preservation Commission's actions with respect to religious buildings, he inquired of the Commission staff concerning its interest, if any, in this particular building. Assured that the Commission was not interested, he bought the building.

Once title to the property was transferred in December, 1981, everything changed. Following vocal protests by neighbors who feared loss of window views and by others who feared more people living in "their" community, the Landmarks Preservation Commission promptly notified the new owner that he would appear before the Commission at a public hearing during the first week of January, 1982, to consider the landmarks designation of the building. In the unprecedented short span of two weeks, the former Mt. Neboh Synagogue was designated as a landmark and the owner's development plans were stopped cold. The next step in the process of regulation required the City's Board of Estimate to affirm or reject the designation. After another public hearing on March 4, the Board of Estimate voted to uphold the Commission's decision to designate. The owner then began a hardship appeal on the grounds that he could not use the building to make a 6% rate of return on his investment of $2.3-million.[18] In July, 1982, after more public hearings, the Commission issued a finding of insufficient return. Mr. Edelman had proved his hardship; but relief was still in the future. Following the complicated procedure in the law, the Commission advertised the property for sale [19] but failed to identify any buyer who would purchase it for the owner's investment and still preserve it as a landmark. The Commission also sought to find tenants who would be willing to lease the space from the owner and use the building without altering the exterior. Under the law, the Commission may force such a sale or lease upon the owner.[20] Finally, in February, 1983, the Landmarks Preservation Commission ended its process and issued a notice to proceed with demolition. Lawsuits filed against Mr. Edelman and the Commission delayed the matter in the courts until May, 1983, at which time the owner was on the brink of bankruptcy with this project. In addition to interest expense on his idle investment (approximately $1,000 per day for a year and a half!), he had to pay for additional legal and architectural fees incident to the several public hearings and other pleadings before the Landmarks Preservation Commission, the Board of Estimate, the Community Board, and the Courts.

In the Spring of 1984, the prospect of a default on a second mortgage interjected a new question into the debate. If another owner takes title to the building (by purchase or foreclosure) would he inherit the "notice to proceed" or would he be obligated to begin at square one with the Landmarks Preservation Commission and argue anew his own financial hardship? The Commission insists that the building is still a landmark until it is actually demolished and that a new hardship appeal would be required by any new owner.[21]

Two other observations are suggested by this case. First, prior to designation, the Commission asserted that it may administratively block the Department of Buildings from issuing a lawful building or demolition permit, even though there had not been so much as a hearing on the proposed designation.[22] With all of the confusing procedures, proceedings and processes, constitutional due process is unknown in the preservationist lexicon. Second, notwithstanding the catastrophic consequences of the lengthy series of proceedings for Mr. Edelman, the Commission was very careful to claim in its press releases that it had acted expeditiously in consideration of the owner's needs. (Ironically, 15 months is expeditious treatment. The law allows the several different appeals, strung end to end, to take well over two years before the Landmarks Preservation Commission – not considering any extensions, postponements, or litigation.)

Although it was a commercial developer and not a religious congregation that was stung in the Mt. Neboh case, the lesson for synagogues and churches is quite clear. A building which was not worthy of landmarking fourteen years earlier suddenly acquires the requisite "special character" at the very moment that a redevelopment of the site is announced. Developers are in business to make a return on their fixed investment. If they must also contend with millions of dollars in unanticipated costs because of an unwilling waltz through landmark wonderland, there is no reason to assume that they will offer fair value for religious property when it must be sold. Religious ministry will suffer because of the value that landmarking has drained from religious buildings.

The United States Supreme Court has generally applied a three part test in determining the constitutionality of a law under the First Amendment's religion clauses: 1. The law's purpose must be a secular purpose, neither fostering nor inhibiting any religion. 2. The law's effect must be the same. 3. The law must not create an "excessive entanglement" of government with religion through regulation or on-going supervision or control.[23] In its decision in Walz v. Tax Commission, the Court ruled that the property tax exemption for religious property was not only permissible as a matter of legislative discretion (the issue raised in this case) but that the prospect of taxation raised the greater specter of "excessive entanglement":

Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result – the effect – is not an excessive government entanglement with religion. The test is inescapably one of degree. Either course, taxation of churches or exemption, occasions some degree of involvement with religion. Elimination of exemption would tend to expand the involvement to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes.[24]

Point for point, the elements of excessive entanglement which Chief Justice Warren Burger cited above parallel the landmark regulation of religious property. The Landmarks Preservation Commission determines the architectural worth of a building according to its current understanding of what it means for a building to have "special character." Pastors, rabbis, and trustees may be subjected to criminal penalties – fines and imprisonment – for making any unapproved alteration to a landmarked building or for failure to maintain a landmark to the aesthetic standards which the Commission may require.[25]

One still unresolved case involves St. Patrick's Old Cathedral in lower Manhattan. The badly rotted casement windows in the school building were replaced last winter (1983) with thermal pane windows. The Commission served a notice of criminal violation on the Pastor, the Rev. Msgr. Nicola Marinacci, because he had not sought Commission approval before replacing the windows. The Commission's objection centered on the fact that the new thermal windows were of a single pane design rather than the multiple pane design which the Commission would have preferred. The Commission was not mollified by photographs showing that some of the windows replaced were, indeed, of the single pane design while some others were multiple pane. The Commission was asked if the violation would be removed if the Church agreed to affix ornamental dividers to give the appearance of multiple panes. The Commission refused. The matter is unresolved with the notice of criminal violation having been served but not actively prosecuted by the Commission or the City.[26]

Penalties, threats of penalties, harassment, entanglement – all are integral parts of the scheme whereby religious property is placed under government regulation by the device of landmarking.

The New York City law is widely regarded as the model for a local landmarking ordinance nationwide. Other cities and counties have, of course, adopted variations. Some provide only for district designation and not for designation on a building-by-building basis. Others provide the opposite. Some communities give automatic tax exemption to the owners of buildings designated as landmarks – a benefit which is of no value to churches and synagogues which are already tax exempt. A few local laws create a method of dealing with proposed alterations or demolitions in a more consultative process wherein the landmarks commission may delay a project for an allotted period of time – usually three to six months – while it tries to work with the owner to explore alternatives. In the end, however, the owner makes the decision with respect to what he does with his own property.

Preservationists are pushing vigorously for greater government control of landmarked structures. They appear to regard persuasion and reason as inferior to the brute force of law. Under the New York City law, the City is permitted to condemn (purchase) a "facade easement."[27] Although this provision of the law has never been used, it would allow the City to pay a very small sum for a protective interest in the skin of the building – effectively freezing the whole building as if the City had paid fair market value through a regular condemnation proceeding, but at a fraction of the cost. Laws have also been enacted to provide for "preservation easements" to be given to private groups – often in exchange for limited grants for repair and restoration. The grant will help for the moment, but the easement will bind the owner and his resources forever. Beware of preservationists offering assistance!

The U. S. Supreme Court has ruled only once in a case involving landmark regulation, Penn Central Transportation Co. v. New York City.[28] In that case, Penn Central sought the right to build on top of the Grand Central Terminal in Manhattan. The Court rejected the argument that Penn Central had been deprived of the full value of its property without due process (an unconstitutional "naked taking" of property). The Court established the principle that an owner is not entitled to the so-called "highest and best use" of his property so long as he can enjoy reasonable use.[29]

The pivotal issue in the Grand Central Terminal case concerned the railroad's ability to make use of the undeveloped air space above the landmarked Terminal by transferring the "development rights" to nearby sites which it also owned. In simple terms, if zoning in an area permits the construction of a twenty-story building and you own a landmarked building with ten floors, you are permitted to sell the development rights to the unused ten stories for use on a building site immediately adjacent or across the street. Acquisition of these "transferable development rights" (TDRs) by the receiving site would allow a building taller than the normal zoning regulation would permit, subject to some absolute proportional limits. This, in theory, would permit a landmarked building owner to be compensated, at least partially, for not being allowed to develop fully his own property. For this remedy to be of value, however, an available receiving site in the immediate vicinity of the landmark is required. And Landmarks Preservation Commission approval of the new building (on the non-landmarked site) would still be required inasmuch as it would have an aesthetic impact on the designated landmark. Yes, under the law, your landmarked building subjects all of your adjacent neighbors to landmarks regulation as well!

The U. S. Supreme Court decision in the Grand Central Terminal case held that landmarking did not constitute an unconstitutional taking of property as Penn Central had argued because of the specific facts in the case: Penn Central Company owned virtually all of the property adjacent to the Terminal and, therefore, could build towers over any of them and use the TDRs from the Terminal. What synagogue or church is in a similar situation?

The much-maligned plans of St. Bartholomew's Church were rejected by the Landmarks Preservation Commission in June, 1984, on grounds of "inappropriateness" – the building which was proposed for construction next to the landmarked church edifice would be aesthetically unpleasing in the view of the Commission. The Church proposed building a 59-story office tower, rising out of the facade of its present six-story community house. The Church would use the first seven floors of the new building (about 50% more space than it now has in the community house) and receive $9.5-million in annual rent from the office tower which would help to underwrite the maintenance of the landmarked edifice and to fund programs of ministry within the parish and the Episcopal Diocese of New York.

Architect Elliott Willensky, a member of the Landmarks Preservation Commission (and also a Director of the Municipal Arts Society of New York which has led the public campaign against St. Bartholomew's Church), voiced stinging criticism as he voted against the building plan proposed by the congregation. Ironically, his remarks would more accurately be an indictment of the landmarks preservation laws in New York. He said: "It is egotistical, self-centered and narcissistic. It says, ‘Look at me, look at me, look at me! Don't look at the church!'"[30]

The Church, having already made a full presentation before the Commission at an all-day hearing in January, 1984, has now been invited to resubmit all of its information and to enjoy another public hearing before the same body – this time, to examine in detail the Church's finances to see whether or not a financial hardship actually exists or whether more funds can be drained away from ministry to human and spiritual need in order to maintain a landmarked community house.

The Vestry of St. Bartholomew's Church has estimated that the denial of its proposed redevelopment is depriving the congregation of 88% of its potential income (the combination of projected rental and the return on its current endowment).[31] Conceding that no owner is entitled to squeeze every possible dime out of his property, is not an 88% deprivation truly an unreasonable burden?

In 1981 and 1982 when the Vestry and congregation were considering possible development options, the Church was sued by the Committee to Oppose the Sale of St. Bartholomew's Church, Inc. (The Committee to Oppose includes the former "Committee to Preserve St. Bartholomew's Church, Inc." which was forced to change its misleading name after litigation brought by the Church.) Much to the shock of many, Justice Edward Greenfield of the New York State Supreme Court (which, incidentally, is the lowest court in New York) entered orders which would appear to be unconstitutional on their face. The Vestry was required to accept a by-law which essentially negated the Vestry's right to make property decisions and to adopt and amend by-laws in accord with Episcopal Church Canon Law. The order also set aside the customary Canon Law qualifications of membership entitling one to vote at a congregational meeting, arrogating to the Court the right to determine membership standing.[32] Mr. Justice Greenfield voided the first vote taken by the membership and he personally counted the second ballot in his chambers in December, 1981.[33] Having received a congregational vote supporting the Vestry's proposal, and in order to avoid further delay, the Church was put in the anomalous position of arguing in support of these rulings on the appeal which was taken by the Committee to Preserve St. Bartholomew's Church, Inc.[34]

Difficulties with the application of local landmarking laws are not limited to the City of New York. Kevin Kennedy, attorney for the Roman Catholic Diocese of Buffalo, described several conflicts within that Diocese that left the Church unable to adjust its property to meet its needs. One example:

Downtown Buffalo is being made into a landmark and preservation district. The Diocese owns a small house, a little bigger than a cottage, with no redeeming architectural features. For more than 100 years it served as the residence of the janitor of the Cathedral. Because it is in a landmark district, it cannot be taken down to enlarge the Cathedral parking lot. It was not the abode of a famous person. It is not associated with a prominent event in our history. It does not possess high artistic value or represent the work of a master, all of which are the conditions which qualify a structure for landmarking.[35]

The First Baptist Church in Ithaca, New York, found itself included in the DeWitt Park Historic District created in 1971. The Church objected to its inclusion because it was then in the process of studying its building needs in light of its ministry. During a 2½ year study of the Church's program and space requirements, the Church's Building Committee considered the feasibility of major renovation and additions to the present building, the possibility of relocating to another site, and the funding potential for all alternatives. The Committee's recommendation to the congregation was to sell the present building and relocate; the congregation agreed by a 54% to 46% majority.

The Church Trustees then applied to the local Landmarks Preservation Commission for a demolition permit (so as to be able to sell cleared land). The Commission denied the permit, ruling that the denial "would not prevent the Church from carrying out its charitable activity." The congregation's right to determine how and where its ministry would be exercised was superceded by a government agency. The Rev. David L. Evans, Pastor of First Baptist Church, testified of the experience:

. . . throughout these negotiations, considerable press coverage was given the issue, including the fact that the Landmarks Commission repeatedly drew attention through the press to the close vote and large minority within the congregation opposed to the demolition of the building. It cited this as part of the rationale for denying an application for demolition as requested by the Church.

The reality of the close vote, and the necessity of the Church membership to be open and sensitive to the variety of opinions within it, was a reality with which the Church was highly aware. The Commission's exploitation of this fact was offensive to the Church at large and hurtful in innumerable ways to an in-house disagreement. The Church's agenda by now included trying to keep itself together as a church-family, and the intrusion of an outside agency, intentional or not, was divisive.[36]

The congregation ultimately reversed its vote and decided to remain in its facility and to undertake necessary repairs. The Church was put in the position of seeking and accepting government funds in order to preserve the building which the Landmarks Commission wanted preserved. "This action was as highly offensive to the more orthodox advocates of the separation of church and state as had been the previous actions of the Landmarks Commission imposed on the Church,"[37] said the Rev. Mr. Evans. Disputes arose over building materials (in replacing an asphalt shingle roof, the preservationists insisted on slate, the original building material) and on funding (the ACLU threatened a lawsuit to block any funds from the City going to the Church). Time, energy, and money are usurped by building preservation issues and denied to the religious ministry for which the Church is organized.

Illustrations of similar interference by government with the rights of religious organizations to exercise responsible use of their resources for ministry are appearing in many parts of the nation. And the number of these conflicts will rise precipitously until the government is restrained from overreaching its authority under the First Amendment. Two major elements are in place to bring about a proper balancing of church/state interests in preservation. One is through the judicial; the other, legislative.

The major judicial challenge is in the State courts in New York. The United Methodist Church of St. Paul and St. Andrew, whose plight began the extensive examination of the constitutional issues of government regulation of churches by landmarking, may help provide a major solution. After hearing delays and extensions, the Landmarks Preservation Commission did, ultimately, designate the building of that congregation as an official landmark in November, 1981. If you can believe it, the limits of "special character" were stretched further by the inclusion of this "landmark" on the official list. The church building merits preservation, said the Landmarks Preservation Commission, because "it is a masterful example of 'scientific eclecticism' . . . ."[38] The designation was affirmed by the City's Board of Estimate in March, 1982, and the Church promptly filed suit in State Supreme Court seeking damages of $30-million and an order vacating the designation on grounds of unconstitutional application of government regulation to religious property.[39]

The legislative debate was joined in 1983 with the introduction of the "Flynn/Walsh Bill" in Albany. Senator John E. Flynn (R-Yonkers) and Assembly Majority Leader Daniel B. Walsh (D-Cattaraugus County) were the sponsors on behalf of a coalition of the major religious bodies in New York State. The Bill would amend the State's enabling act (Section 96-a of the General Municipal Law) which authorizes local landmarking ordinances,[40] by requiring that consent of a religious owner must be obtained before landmarking regulations could be applied to property which is actually used for religious purposes.[41] Property used for commercial purposes, even though owned by religious organizations, would not be protected by this amendment to the law. The Bill also permits a religious owner to withdraw consent at any time in the future should it need to do so. In the case of connectional churches, judicatory concurrence with congregational consent would be required consistent with the usual requirements of the State's Religious Corporations Law concerning property transactions.

The Interfaith Commission to Study the Landmarking of Religious Property expanded its membership after publishing its report in 1982. It is now the New York State Interfaith Commission on Landmarking of Religious Property, reflecting the statewide constituency which it represents.[42] The New York State Interfaith Commission is seeking to educate congregants, the public and, ultimately, the State's legislators to the inherent unfairness and the unconstitutional nature of local landmarking control of religious property.

Opposition to the Bill is well funded and organized by the Municipal Arts Society of New York with Jacqueline Kennedy Onassis and New Yorker Drama Critic Brendan Gill in the forefront. The heat generated by both sides of this issue has, for the moment, paralyzed the legislature which adjourned for the session in June, 1984, without taking any votes on the matter. It had become too hot a potato in an election year.

The compromisers in Albany have been trying to fashion legislation that would keep religious property firmly within government's control by landmarking, but would offer some financial assistance with building maintenance and restoration. These are dead-end proposals because, first, they fail to address the inherent unconstitutional nature of a regulation that allows government to control the principal asset of a religious congregation and, second, any funds which might be made available in these days of government austerity would never be equal to the need. St. Bartholomew's Church, for example, has documented $8-million in deferred maintenance on its two-building complex.[43] The Roman Catholic Diocese of Brooklyn is currently assessing the deferred maintenance expense it faces and is seeing the figures soar to scores of millions of dollars. And what about "establishment" concerns if churches and synagogues are placed on the line for public funds to finance building renovation? Who among us wishes to argue on behalf of that case?

The Real Estate Board of New York has stated its official opposition to the Flynn/Walsh Bill (although appealing for a more generous rate of return in the hardship test). There appears to be much concern in the real estate community about the prospect of development in Manhattan on sites that hitherto have been ignored by developers. Market conditions may reduce rental rates if there is a substantial increase in apartments and offices, especially in midtown Manhattan. Lewis Rudin, a politically-well-connected developer who owns the office building directly behind St. Bartholomew's Community House, would undoubtedly experience a very direct financial loss. For years, the office rents on the backside of his building have been inflated because of the so-called Park Avenue window view available from this Lexington Avenue address. Once the back windows are obstructed by the church's proposed tower, Mr. Rudin's income may decline by an amount estimated to be in the neighborhood of $2- to $4-million annually. These are pricey neighborhoods! But these are the crass realities that undergird opposition to efforts to free religious congregations from government control.

There are some fundamental issues of public policy and constitutional law at issue in this conflict.

Are we, as a society, going to value the preservation of bricks and mortar more than we value religious ministry to the human and spiritual needs of men, women and children?

When funds are contributed to a church or synagogue for religious ministry, is it appropriate for government to take control of a congregation's largest asset – its building – and require that its funds be diverted from ministry to mortar?

Can religious freedom survive a system that permits a government panel to impose its own view of the congregation's ministerial needs, in direct conflict with the congregation's own decision made according to its ecclesiastical polity?

Jesus once taught about God's love for his children by comparing it to the love a Father has for his son. There were certain assumptions in the minds of the hearers when this rhetorical question was asked nearly two millennia ago: "What man of you, if his son asks for bread, will give him a stone?"[44]

With tragic consequences, civil law in these United States of America today requires churches and synagogues alike to choose the stone over the bread, to value mortar over ministry.


Queens Federation of Churches	http://www.QueensChurches.org/	Last Updated February 2, 2005