A Subject Matter Summary for "First Amendment (and RLUIPA)"
The historic preservation of religious structures creates unique tensions between congregations and preservation schemes. Congregations with historic buildings may want to alter or demolish their buildings to meet changing needs, but local preservation laws such as the District of Columbia’s Historic Landmark and Historic District Protection Act (the "Act") seek to preserve architectural integrity. {1} Historic preservation can impose financial constraints on religious structures that may be facing shrinking congregations and limited budgets. Congregations sometime appeal the HPRB’s denial of a demolition or alteration permit on grounds that the denial creates an unreasonable economic hardship. And since religious worship occurs in these spaces, restricting how a congregation uses its property also invites claims of infringement of religious free exercise under the First Amendment of the Constitution and of violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). {2} (42 U.S.C. § 2000cc).
Fearing that the Supreme Court’s court decision in City of Boerne v. Flores, 521 U.S. 507 (1997) did not adequately protect congregations under the free exercise clause of the First Amendment, Congress passed RLIUPA in 2000. Under RLUIPA, "state action" that "substantially burdens" religious free exercise can be justified only as the "least restrictive means" of furthering a "compelling governmental interest." RLUIPA applies only to state or federal government action involving land use or institutionalized persons. However, actions of a local government are considered "state" action. Moreover, historic preservation is not considered a "compelling government interest."
Within the context of land use regulation (and historic preservation), RLUIPA applies where the "burden is imposed in the implementation of a land use regulation or system of land use regulations (in this case, historic preservation ordinances), under which a government makes...individualized assessments of the proposed uses for the property involved." The purpose in passing RLUIPA’s land use provisions was to eliminate covert discrimination against religious groups by zoning boards. Despite its sweeping language, the statute was not intended to immunize religious institutions from local land use laws such as zoning or historic preservation. As the Mayor’s Agent recently noted in World Mission Society, Inc. , {3} he could not identify a single reported court decision in which any court has held that the denial of a permit under a local historic preservation ordinance violated RLUIPA. Although, for the first time the Mayor’s Agent noted that it was proper for him to decide a case on the merits under RLUIPA.
Although it is doubtful whether the mere landmarking or inclusion into an historic district of contributing properties used for religious purposes, per se, would burden a congregation’s free exercise of religion, a congregation’s claim is not ripe for adjudication until the District actually denies a permit under the Act. Metropolitan Baptist Church v. D.C. Dep’t of Consumer & Regulatory Affairs , 718 A.2d 119 (D.C. 1998). Also, the mere landmarking or inclusion of church property used for religious purposes within an historic district (thus making the property subject to generally-applicable preservation permit requirements) is not per se unconstitutional. See Rector of St. Bartholomew’s Church v. City of New York , 914 F.2d 348, 351-52 (2d Cir. 1990). Thus, churches are subject to neutrally-applied preservation ordinances such as the DC Act. As the Supreme Court noted in the landmark preservation case Penn Central Transportation Co. v. City of New York , 438 U.S. 104 (1978) the decision to landmark a particular building involves discretion and subjective tastes about aesthetics, but the subjective elements considered in the landmarking process do not make the final decision arbitrary because preservation laws treat similar property in a similar manner within a generally applicable scheme.
In the very limited circumstance where a congregation can demonstrate the critical importance of its location to its mission, and the inability to either renovate or obtain another parcel in the same area, the Mayor’s Agent may allow demolition under the Act of a landmarked historic building. Recent cases underscore that religious groups—absent a showing of discriminatory motive, coercion in religious practice, or a congregation’s inability to carry out its religious mission in its existing facilities-- do not receive special exemptions from historic preservation laws so long as they are neutral laws of general applicability.
In Third Church of Christ, Scientist , {4} the church sought to demolish its landmarked concrete Brutalist church building and office building located on 16th and H Streets, blocks from the White House. The Church, faced with burdensome maintenance costs, a much reduced congregation, and dwindling funds, claimed that denial of a demolition permit would cause "unreasonable economic hardship," which under the Act means that "the failure to issue a permit would amount to a taking of the owner’s property" (a Fifth Amendment claim). {5}
The Mayor’s Agent did not consider either alleged violations of the First Amendment of the U.S. Constitution, nor of the Religious Freedom Restoration Act {6} ("RFRA") or the RLUIPA {7} ; instead, the Mayor’s Agent allowed demolition on economic hardship grounds D.C. Code § 6-1104(e) (2014). The Mayor’s Agent ultimately granted the demolition permit, subject to the condition that the Applicant first obtain a building permit to construct a new church on the same or nearby parcel.
The Mayor’s Agent found that for the Third Church, "Its location is its mission. To leave the area it has served since 1918 would be tantamount to its destruction. Yet to remain in the present building would have the same result." Because of the "unique relationship between the Church and its location," in the words of the Mayor’s Agent, the Church need not, for example, prove efforts to sell its building in order to relocate, because relocation is not a viable option. The Mayor’s Agent also found that due to the building’s unique design problems, the building could not be adaptively reused. These are very limited conditions that few other congregations will be able to meet.
Indeed, in subsequent cases, religious groups have not been able to show that the denial of an alteration or demolition permit amounted to an unreasonable economic hardship under the Act or a substantial burden on the free exercise of religion under the First Amendment or RLUIPA. In World Mission Society {8} the World Mission Society sought an alteration permit to remove 28 contributing stained-glass windows from its church building, which is located in the Capitol Hill Historic District. The Historic Preservation Office considered the church building a "major building" in the historic district and the windows "historic windows" and "special windows."
The church, which had just purchased the property, said that its core beliefs forbid worship in a space depicting shapes in stained glass. While preserving the windows on the interior of the church building impinges on the worship practices, the Mayor’s Agent faulted the church’s utter lack of due diligence and cavalier attitude toward the law. The congregation purchased a church building in a historic district but failed to investigate whether it could replace the windows. The Mayor’s Agent suggested the situation would be different if the District imposed new preservation restrictions on an existing congregation. The lack of the nexus between the church’s location and its mission makes this case distinguishable from Third Church of Christ, Scientist . {9}
In House of God, Inc. , {10} the Mayor’s Agent denied House of God’s attempt to demolish a dilapidated carriage house at the rear of its property. The Mayor’s Agent found it would not pose an unreasonable economic hardship to preclude the demolition of the carriage house. The Mayor’s Agent noted that the congregation’s increased costs for stabilization or rehabilitation of the carriage house were attributable directly to its failure to maintain the building adequately. {11} In addition, reasonable alternative uses included the sale of the property so long as the loss would not be unconscionable. Unlike the Third Church of Christ, Scientist case where the Mayor’s Agent found the church could not address economic hardship because its mission was tied to its downtown location and no alternative site was available, the House of God’s location on Capitol Hill was not found to be integral to its mission. {12}
Similarly, in the case 1232, 1234, and 1236 New Jersey Avenue, NW , {13} the Mayor’s Agent denied a demolition permit of three rowhouses owned by the Third Street Church of God. In assessing the church’s claim of unreasonable economic hardship, the Mayor’s Agent treated the church just like all other similarly situated property owners in a historic district. Since the Applicant could sell the properties for four times the purchase price, expensive repairs would not impose an unreasonable economic hardship. {14} The Mayor’s Agent accorded great respect to the church’s desire to keep the properties for parking, but the additional cost for stabilization was not deemed to be unreasonably burdensome. {15}
For additional analysis of federal and state cases involving historic preservation and religious properties, see the following resources:
- The National Trust for Historic Preservation, "Court Decisions Involving Religious Properties" (2009), available at:
- Stockton, Bryan, "Preserving Sacred Places: Free Exercise and Historic Preservation in the Context of Third Church of Christ, Scientist, Washington, DC" (2008). Georgetown Law Historic Preservation Papers Series , Paper 29, available at :
http://scholarship.law.georgetown.edu/hpps_papers/29
- Hill, Susan Corts, "Is an Exemption from Historic Preservation Designation for Religious Institutions Needed in the District of Columbia?" (2008). Georgetown Law Historic Preservation Papers Series , Paper 27, available at :
http://scholarship.law.georgetown.edu/hpps_papers/27
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{1} D.C. CODE § 6-1101 (2014)
{2} 42. U.S.C. § 2000cc (2000)
{3} See HPA No. 12-263 (2013)
{4} HPA No. 08-141 (2009)
{5} See HPA No. 08-141 (2009)
{6} 42 U.S.C. § 2000bb
{7} 42 U.S.C. § 2000cc
{8} See HPA No. 12-263 (2013)
{9} See HPA No. 08-141 (2009)
{10} See HPA No. 11-488 (2012)
{11} See In re House of God, Inc., HPA No. 11-488 (2012)
{12} Id at 3-4.
{13} See HPA No. 12-023 (2012)
{14} See In re 1232, 1234, and 1236 New Jersey Avenue, NW , HPA No. 12-023 (2012)
{15} Id at 3.
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A Subject Matter Summary for "Mayor's Agent - Jurisdiction"
DC Mayor's Agent (1977)