Ministry vs. Mortar: A Landmark Conflict

by the Rev. N. J. L'Heureux, Jr.
Executive Director, Queens Federation of Churches

FOOTNOTES
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[*] The author was educated at Ohio Wesleyan University (BA in sociology) and Boston University School of Theology (ThM in sociology of religion and social ethics). He is an ordained minister in The United Methodist Church and, since 1978, has been Executive Director of the Queens Federation of Churches. He is a current member and past Chairman (1979-81) of the Committee of Religious Leaders in the City of New York, served as Chairman of the Interfaith Commission to Study the Landmarking of Religious Property, and continues to chair the New York State Interfaith Commission on Landmarking of Religious Property.

[**] The Second Conference on Government Interference in Religious Affairs was held September 12-14, 1984, in New York City. It was sponsored by National Council of the Churches of Christ in the U.S.A., United States Catholic Conference, Synagogue Council of America, National Association of Evangelicals, Lutheran Council in the U.S.A., and the Southern Baptist Convention. The Conference proceedings, including this paper, were published as: Dean M. Kelley, ed., Government Intervention in Religious Affairs 2, New York, Pilgrim Press, 1986.

[1] Matter of Westchester Reformed Temple v. Brown, 22 NY 2d 448 (1968), at 496. (Note: Case citations "NY" refer to decisions of the New York Court of Appeals, the State's highest court; "AD" citations refer to decisions of the Appellate Division of the New York State Supreme Court.)

[2] The City of New York is divided into 59 "Community Districts," each with a Community Board comprised of between 35 and 50 persons who either live or work within the district and who are appointed by the Borough President and the City Council Members from that district. The members serve without pay and have wide latitude to hold public hearings and to pass resolutions on zoning and service delivery issues within the district. The Community Board is advisory to the various City agencies which have the authority to act.

[3] In 1979, Community Board No. 7, Manhattan (Upper West Side), sought grant funding for a "Special Project" of its Landmarks Sub-Committee: Preserving Neighborhood Houses of Worship, Their Congregations and Social Programs: New Frontiers in Community Planning. Prepared without any consultation with local or City church leaders, the proposal was abandoned after neighborhood clergy discovered the proposal and the Committee of Religious Leaders criticized it as unconstitutional.

The project proposed a "Resource Survey" to create and publish a "data base . . . on all houses of worship in the area . . . ." The data to be collected by this City agency were to include:

. . . a brief history of each structure; a description of the interior and exterior with emphasis on special features such as stained glass windows and sculptural ornament; an estimate of square footage; the name, denomination and a brief history of its current congregation; information on how chartered and restrictions on deed; a list of the current social service programs, the number of years each has been in operation, their annual budgets and an estimate of the value of direct and in kind assistance the sponsoring institution provides; graphs showing the number of parishioners, operating and capital expenditures for the last five years; a cost estimate for any deferred maintenance; a list of any significant problems; photographs; and an addendum of architecturally significant houses of worship on the West Side demolished between 1900 and 1979, together with descriptions of their replacements.

The proposal anticipated a "Public Exhibition" and publication of a free "illustrated catalogue" of these data, noting "Equal attention will be devoted to the aesthetic value of the houses of worship and the importance of their non-sectarian services to the community." The proposal provided for Community Board action to nominate "those structures identified during the survey as architecturally significant" for inclusion on the National Register of Historic Places and for local landmarks designation.

[4] Administrative Code of the City of New York, Chapter 8-a (hereinafter referred to as the "Landmarks Law"), §207-1.0(n).

[5] Landmarks Law, §207-2.0(a)(2).

[6] Committee of Religious Leaders in the City of New York, Final Report of the Interfaith Commission to Study the Landmarking of Religious Property, January 26, 1982, (hereinafter referred to as the "Interfaith Report"), at 11.

[7] Interfaith Report, at 23, concluded "that the law has become a convenient means of abusing the civil and property rights of owner organizations by a variety of elected, appointed, and self-appointed individuals who bear no responsibility for the ongoing work of the religious congregations involved."

[8] Landmarks Law, §207-10.0.

[9] Ibid., §207-2.0(a)(4).

[10] The Landmarks Preservation Commission provided a list of all church and synagogue property on which designation hearings had been held prior to February, 1981. That list included 137 sites of which 82 had, at that time, been officially designated as landmarks and 2 others which had been included within historic districts (obviating the need for an individual designation). Of the remaining 53 sites, some of which have subsequently been designated as landmarks, action was taken by the Commission in only two cases not to designate; a fire had destroyed the edifice before designation was voted. In all other cases, the open file remains a threat to the right of the congregation to make decisions on the use of its property as a result of the Commission's assertion – unsupported by the Landmarks Law – that its mere interest in a building entitles it to notify the Department of Buildings to deny applications for lawful building or demolition permits. The oldest of these open files dates back to January, 1966, only months after the Landmarks Preservation Commission was created.

Correspondence obtained after the publication of the Interfaith Report demonstrates that, at least in this one instance, the Landmarks Preservation Commission is able to effect a denial of lawful permits without due process of law. On March 26, 1982, an internal memorandum to the Executive Director of the Landmarks Preservation Commission confirmed that the Department of Buildings had "a letter from Christopher Gray [an architectural historian who testifies frequently before the Commission] requesting that the demo[lition] permits be held. I then reiterated the importance of their holding the permits." The memorandum confirmed that the "index card for the church in the violations section [of the Department of Buildings] is tagged, ‘Any DP [demolition permit] applications see Mr. Sakona immediately.'" The church in question was the Second Church of Christ, Scientist, which had attracted public attention because of its consideration of a redevelopment plan for its property on Manhattan's Upper West Side. At the time of the memorandum, the church's property had not even been placed on a calendar for a public hearing to consider designation. A hearing was held on June 23, 1982, but no action has since been taken by the Landmarks Preservation Commission; the church appears to have been "persuaded" to change its mind concerning redevelopment plans.

[11] In 1982, the Landmarks Preservation Commission voted to designate the Bronx Grit Chamber (a sewage treatment plant), a portion of the IRT Subway tunnel and elevated line in Harlem, and required the restoration of a 12' x 14' former auto repair shop in Greenwich Village. See: "Panel Declares Treatment Plant City Landmark," The New York Times, June 9, 1982; and "A Landmark Village Gas Station," The New York Times, July 28, 1982.

[12] Landmarks Law, §207-5.0.

[13] Ibid., §207-6.0.

[14] Ibid., §207-8.0(a)(1) and see also §207-1.0(v)(1).

[15] Ibid., §207-8.0(a)(2).

[16] Matter of Sailors' Snug Harbor in the City of New York v. Platt, 29 AD 2d 276 (1968), at 378.

[17] The judicially constructed test for "hardship" which was fashioned in Sailors' Snug Harbor, a secular nonprofit institution, was later applied to determine hardship in the case of a religious institution. The New York Court of Appeals, the State's highest court, ruled in Lutheran Church in America v. City of New York, 34 NY 2d 121 (1974), that the landmarks designation of the former J. P. Morgan Mansion in midtown Manhattan, owned by the denomination and used for national offices, was unconstitutional as applied.

The LCA had acquired the property in 1942 for use as offices. It built an addition for these same purposes in 1958 and, at the hearing before landmarks designation in 1965, opposed the action. After designation, LCA commenced an action for declaratory judgment seeking to void the designation of its property based on First and Fifth Amendment consideration. The Court did not deal with the First Amendment question focusing, instead, on the Fifth Amendment question of a "naked taking." Courts below had received testimony, uncontested by the defendants, that the building was not adequate for the office use to which the Church had put it since acquisition in 1942. Citing numerous zoning cases (eg. at 130, Forester v. Scott, 136 NY 577, 584: "[it] is not necessary, in order to render a statute obnoxious to the restraints of the Constitution, that it must in terms or in effect authorize an actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment or the power of disposition at the will of the owner.") and applying the test from Sailors' Snug Harbor, (at 131: "where designation would prevent or seriously interfere with the carrying out of the charitable purposes, it would be invalid"), the Court of Appeals concluded (at 131-132):

Plaintiff is a charitable organization and not otherwise subject to the various administrative alternatives set up in section 207-8.0 which could result in condemnation of the property sought to be altered or demolished. We save for another day consideration of those provisions where sought to be applied. What has occurred here, however, where the commission is attempting to force plaintiff to retain its property as is, without any sort of relief or adequate compensation, is nothing short of a naked taking. As in the New Jersey Parsippany case [40 N.J. 539, supra], 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. Legitimate zoning stops far short of this because it does not appropriate to public use. Where the owner can make a case for alteration or demolition, the municipality would have to relinquish the designation, provide agreeable alternatives or condemn the premises.

Such a case has been alleged and proved here, contrary to assertions in the dissent, and standards substantially unrebutted by the defendants. It is uncontested that the existing building is totally inadequate for plaintiff's legitimate needs and must be replaced if plaintiff is to be able freely and economically to use the premises especially as it appears that adjoining structures have been integrated with plaintiff's operation. The power given the municipality to force termination of plaintiff's free use of the premises short of condemnation (which would provide compensation for plaintiff's complete loss) directly violates plaintiff's rights under the Fifth and Fourteenth Amendments to the United States Constitution, and sections 6 and 7 of article I of the New York Constitution. As in Vernon Park Realty v. City of Mount Vernon [307 N.Y. 493, supra] we find a situation exceeding the permissible limits of the zoning power.

The order appealed from should be modified, with costs, to the extent that the landmark designation as here applied is declared to be confiscatory.

[18] The Landmarks Preservation Commission elected, in this case, to use the purchase price of the property as the basis for determining "insufficient return" rather than the assessed value as provided by the Landmarks Law, §207-1.0(v)(1).

[19] On September 16, 1982, the following advertisement appeared in The Westsider (a neighborhood weekly newspaper covering the Upper West Side of Manhattan), at 3:

Former Mount Neboh Synagogue, 10,000 Square Feet. Purchaser sought for the former Mt. Neboh Synagogue at 130 West 79th Street, a designated New York City Landmark. Must be interested in preserving structure, which can be adapted to other uses. Contact Lenore Norman at 566-7577.

Ms. Norman is the Executive Director of the Landmarks Preservation Commission and the telephone listed is at the Commission's office.

[20] The Landmarks Law, §207-8.0(I)(1), provides for the forced sale or lease of landmarked property owned by a nonprofit organization when a hardship has been established. The provisions of the Law, §207-8.0©), applicable to property held in commercial ownership would permit the Landmarks Preservation Commission, after a finding of "insufficient return," to formulate a plan which "may include, but shall not be limited to, (1) granting of partial or complete tax exemption, (2) remission of taxes and (3) authorization for alteration, construction or reconstruction appropriate for and not inconsistent with the effectuation of the purposes of this chapter."

The weaving together of elements from non-applicable portions of the Law (governing nonprofit owners as against commercial owners), from judicial decisions, and from uncatalogued rulings of the Commission in previous cases contributes to the general confusion which effectively denies any applicant due process. The applicant simply cannot predict accurately which "test" will be used with his application nor can he anticipate which type of "plan" may be devised to address his hardship. The Law, through the use of open-ended and vague phrases (eg. "may include, but shall not be limited to...," and "special character" as the criterion for designation), gives to the Landmarks Preservation Commission an authority unfettered by limits. The Commission, for its part, has never in 19 years of operation adopted administrative regulations of any kind.

[21] Gus Dallas, "Mt. Neboh case boils up again," [N.Y.] Daily News, March 20, 1984, at – 1.

[22] Interfaith Report, op. cit., at 14-15.

[23] Lemon v. Kurtzman, 403 US 602 (1976), at 612-13.

[24] Frederick Walz v. Tax Commission of the City of New York, 397 US 664 (1970), at 674, emphasis added.

[25] The Landmarks Law, §207-16.0, provides for fines up to $1,000 and jail terms up to 1 year for each day that a violation occurs (eg. unauthorized repair or alteration or simple failure to maintain the landmarked building). The section also provides for criminal penalties to be assessed against any applicant "who refuses to furnish, upon demand by the commission, any information relating to such application or request. . . ." In the case of a hardship appeal by a church or synagogue, this would clearly pertain to all financial records of the institution, board minutes, and any other records which the Commission wanted to examine in order for it to determine "the purposes and resources of the petitioner" (Sailors' Snug Harbor, op. cit.).

[26] The Rev. Msgr. Nicola Marinacci, Pastor, Old St. Patrick's Cathedral, New York City, in testimony before the Joint Legislative Hearing on Landmarking Religious Property, New York State Senate and Assembly, Albany, New York, February 8, 1984.

[27] Landmarks Law §207-8.0(g)(1) provides that the City may purchase a "protective interest" in the property. [N.B. The National Register and various state preservation laws, while not providing the detailed regulation and restrictions of local landmarking laws, often make use of a "preservationist easement" as a quid pro quo for financial assistance. New York State, among other states has recently adopted legislation permitting the owners of historic buildings to donate such an easement to a qualified nonprofit preservationist organization in exchange for an income tax deduction. In either circumstance, the owner conveys significant ownership rights to another party – either government or private – by such a restrictive covenant. Generally, the cost of maintenance remains with the owner of record but the authority to require maintenance and to prohibit alteration is given to the holder of the easement.]

[28] Penn Central Transportation Company v. New York City, 438 US 104 (1978).

[29] Only two cases involving religious property and disputes over landmarking regulations have been adjudicated in New York State; a third, brought by the Church of St. Paul and St. Andrew, is in its early stages in New York State Supreme Court. Lutheran Church in America [supra] was decided in 1974 in favor of the Church, but on the issue of an unconstitutional "naked taking." In 1980, following the 1978 decision of the U. S. Supreme Court in Penn Central Transportation Company [supra], the New York Court of Appeals decided the Matter of the Society for Ethical Culture in the City of New York v. Spatt, et al., 51 NY 449 (1980).

The Society sought to be released from the landmarks designation which had been imposed upon its Meeting House in order to pursue a plan to replace the building with an apartment tower for the stated purpose of generating income for the Society. The Court of Appeals held that the Society had failed to meet the hardship test established in Sailors' Snug Harbor and applied in Lutheran Church in America, stating (at 455-456):

Although the Society does argue that the physical structure of the Meeting House is ill-adapted to its present needs, by no means are we assured that the only feasible solution to this problem would entail the demolition of the now protected building facade. Instead, petitioners' arguments seem to emphasize aggrievement with respect to the prohibition against high-rise development. There is no genuine complaint that eleemosynary activities within the landmark are wrongfully disrupted, but rather the complaint is instead that the landmark stands as an effective bar against putting the property to its most lucrative use. But there simply is no constitutional requirement that a landowner always be allowed his property's most beneficial use [Goldblatt v. Town of Hempstead, 369 US 590, 592].

It is noteworthy that the designation we are here concerned with applies only to the building facade, and it is possible that studies would reveal that without disturbing this protected portion, feasible modifications could be employed to allow the Society to continue its charitable activities in the building, as it has for over 60 years. This, of course, would be a matter for consideration at the appropriate time by the commission. In fact, the Society concedes that even minor modifications and a certain amount of normal maintenance have been held in abeyance while the questions of demolition and redevelopment were being explored. It therefore remains unclear whether both the interest of the Society and the interest of the public may yet be accommodated.

The Society also contends that the existence of the designation interferes with the free exercise of its religious activities; however, rather than argue its desire to modify the structure to accommodate these religious activities, the Society has suggested that it is improper to restrict its ability to develop the property to permit rental to nonreligious tenants. For this reason the Society's reliance on our decision Matter of Westchester Reform Temple v. Brown [22 NY 2d 488], which dealt with restrictions actually impairing religious activities, is clearly misplaced. Although the Society is concededly entitled to First Amendment protection as a religious organization, this does not entitle it to immunity from reasonable government regulation when it acts in purely secular matters [cf. Wisconsin v. Yoder, 406 US 205, 215].

It is interesting to note that, had the Society for Ethical Culture entered into a contract to sell its Meeting House for development as an apartment building rather than proposing to engage in this commercial development itself, the new purchaser may well have succeeded in a hardship appeal based solely on the economic hardship test of "insufficient return." A nonprofit or religious owner must bear a heavier burden in establishing a "serious interference" or inability to carry on its charitable purposes.

[30] Elliott Willensky, quoted by David W. Dunlap, "Landmarks Panel Vetoes Tower Plans for St. Bart's and Historical Society," The New York Times, June 13, 1984, at B-1.

[31] Anthony Marshall, Junior Warden of St. Bartholomew's Church, addressing the Association of the Bar of the City of New York, June 18, 1984.

[32] See Rector, Church Wardens and Vestrymen of St. Bartholomew's Church in the City of New York, Respondent, v. Committee to Preserve St. Bartholomew's Church, Inc., et al., Appellants, 56 NY 2d 71 (1982) and 85 AD 2d 425 (1982). In an Order of the New York State Supreme Court dated November 24, 1981, and entered December 23, 1981, Mr. Justice Greenfield determined membership standing, in part: ". . . anyone who has made a contribution in the years 1979 or 1980 and makes a further contribution in the year 1981 shall be deemed a qualified voter." [Cited in 85 AD 2d 425 at 427]

[33] The ballots of the original vote were impounded and destroyed without having been counted. The second ballot, governed by the November 24, 1981, order of Mr. Justice Greenfield, was conducted on December 18, 1981, and counted by him personally in chambers. The result favored the Vestry's plans for development of the Community House site by a margin of 21 votes: 372 ballots in favor, 354 ballots opposed.

[34] The November 24, 1981, order of Mr. Justice Greenfield followed a conference, in chambers, between representatives of the Church and of the Committee to Preserve and represented an agreement of both parties in order to avoid further delay in obtaining a congregational vote on the issue of developing the community house site. Following the actual vote, the Committee to Preserve appealed, arguing that qualified members of the congregation had been disenfranchised by the original order to which it, along with the Church, had agreed. Without passing judgment on the formula for membership qualifications in the November order, both the Appellate Division [85 AD 2d 425 (1982)] and the Court of Appeals [56 NY 2d 71 (1982)] rejected the Committee's arguments: "Special Term should be affirmed, even if Justice Greenfield erred in his construction of who was entitled to vote, simply because the defendants, as a result of their role in what transpired, cannot be heard to complain about the outcome of the vote." [85 AD 2d 425, at 427]

[35] Kevin Kennedy, Attorney for the Roman Catholic Diocese of Buffalo, in testimony before the Committee on Cities of the New York State Senate, Niagara Falls, New York, September 28, 1983.

[36] The Rev. David L. Evans, Pastor, First Baptist Church, Ithaca, New York, in testimony before the Joint Legislative Hearing on Landmarking Religious Property, New York State Senate and Assembly, Albany, New York, February 8, 1984.

[37] Ibid.

[38] New York City Landmarks Preservation Commission, file LP-1126, November 24, 1981, designated as a landmark the church edifice of the Church of St. Paul and St. Andrew, 86th Street at West End Avenue in Manhattan.

[39] The United Methodist Church of St. Paul and St. Andrew took its objection to landmark status for its building to the Board of Estimate which is required by law to review all designations. Following its affirmation of the designation on March 18, 1982, the Church filed suit in New York State Supreme Court, New York County (Manhattan), [Index no. 6781/1982; dated March 23, 1982], seeking a declaratory judgment that:

1. . . . the act of the Landmarks Preservation Commission designating plaintiff's church a landmark is unconstitutional and void.

2. . . . the applicable provisions of the Administrative Code authorizing designation of plaintiff's church as a landmark are unconstitutional and void as applied to plaintiff's church.

3. . . . the Landmarks Preservation Commission, its members and staff, and the City of New York, are enjoined and restrained from taking any action to enforce against plaintiff's church any of the provisions of the Administrative Code applicable to a landmarked building and site.

The action also seeks damages of $30-million plus costs and attorneys' fees.
The City, in its initial response, alleged that the Church had failed to exhaust administrative remedy (i.e., the "hardship" process by which the Commission, under §207-8.0(I)(1), may order the forced sale or lease of the church's building contrary to the Church's needs and interests) and moved for dismissal.

The Church persevered in the face of numerous dilatory actions by the City and completed depositions of three City officials in 18 months, during which time the City took no depositions. After the Church moved, in November, 1983, that a trial date be set, the City objected that it had insufficient time to depose any church official and was given 30 days to do so. Following additional delay, the matter was calendared for trial in June, 1984. Literally on the eve of trial, the City moved for dismissal again and a hearing was held July 18, 1984, before Justice Robert E. White. At the hearing, the City dropped its first defense (failure to exhaust administrative remedy) and substituted a novel cousin: lack of justicial ripeness.

In a decision dated August 1, 1984, Justice White dismissed the complaint, without prejudice, and ordered that the administrative hardship procedures be expedited by the Commission. The Church has taken the matter to the Appellate Division where it is pending at this writing (September, 1984).

[40] Local landmarks laws in New York State are authorized by Section 96-a of the General Municipal Laws which states in full:

§96-a. Protection of historical places, buildings and works of art. In addition to any power or authority of a municipal corporation to regulate by planning or zoning laws and regulations or by local laws and regulations, the governing board or local legislative body of any county, city, town or village is empowered to provide by regulations, special conditions and restrictions for the protection, enhancement, perpetuation and use of places, districts, sites, buildings, structures, works of art, and other objects having a special character or special historical or aesthetic interest or value. Such regulations, special conditions and restrictions may include appropriate and reasonable control of the use or appearance of neighboring private property within public view, or both. In any such instance such measures, if adopted in the exercise of the police power, shall be reasonable and appropriate to the purpose, or if constituting a taking of private property shall provide for due compensation, which may include the limitation or remission of taxes.

[41] The "Flynn/Walsh Bill" (officially S.6684, introduced in the New York State Senate by John E. Flynn (Republican of Yonkers), and A.7942, introduced in the New York State Assembly by Daniel B. Walsh (Democrat of Cattaraugus County) as amended) was introduced in May, 1983. It drew a great deal of attention; hearings were held, including an unusual "Joint Legislative Hearing" on February 8, 1984, in Albany; but no formal action was taken prior to the adjournment of the Legislature in June, 1984. The Bill proposed to add a second paragraph to Section 96-a of the General Municipal Laws as follows:

2. No local law, regulation, special condition or restriction adopted pursuant to subdivision one of this section shall, after the effective date of this subdivision, be applicable to any real property that is used or leased, or that is intended in good faith to be used or leased with reasonable promptness, for religious, charitable or educational purposes and is owned (a) by a corporation or association that is organized and operated for religious purpose, or (b) by an organization operated, supervised, or controlled by or in connection with a religious organization unless and until the owners of such property shall have filed a consent to such applicability with the governing board of the local legislative body that adopted such local law, regulation, special condition or restriction. Any such local law, regulation, special condition or restriction that has been applied on the effective date of this subdivision, or that thereafter shall be applied, to any such real or personal property shall become inapplicable thereto upon the filing by such owner of a notice of inapplicability with the governing board or local legislative body that adopted such local law, regulation, special condition or restriction. Any consent or notice authorized by this subdivision shall describe the property affected and shall be subscribed and acknowledged in the same manner as required by law to entitle a conveyance of real property to be recorded. When the owner of such property is an incorporated church referred to in section twelve of the religious corporations law, any such consent or notice shall also include a certification that the consent to the filing thereof has been obtained from the ecclesiastical official or body whose consent would be required by said section to the sale, mortgage or lease of real property. When such consent or notice has been filed with such governing board of local legislative body, a copy thereof, to which shall be annexed an affidavit showing proof of such filing, may be recorded in the office of the clerk of the county where the property to which it relates is situated. Such county clerk shall, upon request and tender of the lawful fees therefor, record the same in his said office.

[42] The five religious institutions which comprise the membership of the New York State Interfaith Commission on Landmarking of Religious Property are the New York Board of Rabbis, the New York State Catholic Conference, the New York State Council of Churches, the Council of Churches of the City of New York, and the Queens Federation of Churches.

[43] "Memorandum in Support of the Application of the Rector, Church Wardens and Vestrymen of St. Bartholomew's Church for Certification of Appropriateness and Relief Incidental Thereto," filed December 15, 1983, with the Landmarks Preservation Commission, at 30-35, listed "required repairs and replacements to the Church's buildings" which amount to $8,675,000.

[44] Matthew 7:9, RSV.