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Does RLUIPA apply to Historic Preservation Designations?

Written by Daniel P. Dalton on May 21, 2010 Category: Land Use and Zoning, Religious Institutions, RLUIPA

In reaction to the loss of several important buildings within larger metropolitan areas in the 1950’s, communities throughout the nation began grassroots efforts aimed at providing a legal mechanism to protect local significant historic resources. With the adoption of Historic Preservation zoning codes, communities were given the legal authority to designate and prevent the demolition or destruction of historical, architectural, and cultural resources considered valuable to the community as a whole. Today, more than half of all larger metropolitan communities throughout the United States have historic preservation ordinances. How does the historic preservation code impact religious entities who wish to renovate or remove buildings that no longer fit their needs in light of the Religious Land Use and Institutionalized Persons Act? That issue is currently being litigated in Washington D.C. and Illinois resulting in two different outcomes.

In the City of Peoria, Illinois, Trinity Evangelical Lutheran Church, located in the downtown district, purchased an abandoned apartment next to its Church with the intention of tearing it down and building a family life center. The Church met with representatives of the City, who, were not pleased with the idea of having the Church remove the property from the tax roles. Therefore, over the objection of the Church, it designated the abandoned apartment building a “city landmark” under the historic preservation ordinance with the end result that the Church could not remove the building, but rather, could only renovate it to use an apartment building.

In Washington D.C., the Third Church of Christ Scientist sought to remove the designation of Historic Preservation to its building located in downtown Washington D.C. The Church, built in 1971, was built in the “Brutalist” architectural style. As one commentator described it, Brutalism is “the celebration of concrete.” The building is a concrete octagonal tower. Its fortress like façade features three massive, windowless, 60 feet high concrete walls. The door to the Church is hidden from the street. Upon learning that the Church was not satisfied with the building in 1988, the City placed a historic preservation designation on the building requiring the Church to continue its use as a worship facility, even thought it did not want to.

Both of these matters resulted in federal Court litigation in 2008 resulting in interesting decisions this past month. In the Third Church case, the City filed a Motion to Dismiss the Complaint suggesting that the historic preservation status trumped First Amendment and RLUIPA concerns. After oral argument on the motion last week, the Court denied the Motion sending his thoughts through oral argument that the historic preservation board should have considered the First Amendment and RLUIPA concerns at a hearing where the request to remove the permit was considered and denied.

However, in the Trinity Church case, the Court dismissed the RLUIPA claim brought by the Church concluding that the “Court cannot find that the landmark status of the apartment building and the concomitant limitations on the renovation or teardown of the apartment building constitutes a substantial burden on the religious exercise of the Church.” The rationale of the Court in Trinity Church was that because the Church could still have its ministry, no substantial burden would arise. It is interesting that two similar fact patterns could lead to two separate results.

So what is a Church suppose to do when faced with a historic preservation designation that would result in it loosing the ability to renovate or demolish its building? Step one is to consult with an attorney and planner familiar with the area of the law to design a game plan to combat the designation. Step two is to become involved in the community to find out who is driving the plan to make the property designated as historically significant, and more importantly, find out why. Step three is to be proactive: if your Church is planning on renovating or demolishing a structure that you are hearing the City wants to stop, take out permits and begin work now so you have a “vested right” in the process.

I am a proponent of historic preservation when it is used in the context of truly preserving our heritage. As Witold Rybczynski, one of the leading proponents of preservation noted, in his book, The Look of Architecture:

Buildings are sometimes referred to as timeless, as if this were the highest praise one could bestow. That is nonsense. The best buildings…are precisely of their time. That is part of the pleasure of looking at buildings from the past. They reflect old values and bygone virtues and vices…That is why old buildings are precious, that is why we fight to preserve them. It is not only because we think them beautiful, or significant. It is also because they remind us of who we once were. And who we might be again, for old buildings also inspire.

However, when historic preservation is used as a “tag” to stop a Church from using land for religious purposes because it is taken off the tax roles, or used to stop a Church from worshiping because the building is no longer functional, then it needs to be challenged. Only time will tell where the law will settle with these cases.

Regards, Dan

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Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.