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August 7, 2008, Washington Business Journal
Christian Science Church sues D.C. over landmark designation
A D.C. church filed a federal lawsuit Thursday aimed at overturning District-imposed historic restrictions, setting up a legal challenge that may redefine local governments' ability to regulate land use by religious institutions.
The Third Church of Christ, Scientist - affiliated with Boston's Christian Science Church - wants the court to remove the city's historic landmark designation on its midcentury modern church at 16th and Eye streets NW, two blocks north of the White House. The suit comes two weeks after D.C.'s Historic Preservation Review Board denied the church's application for a permit to demolish the landmarked building.
At a press conference swarming with television cameras, church leaders and their attorneys announced they had sued both the District and the preservation board in U.S. District Court for D.C.
"Little is more representative of a church's theology than its architecture, and this building is not us," said Darrow Kirkpatrick, the church's lay leader.
"We are not forbidding and secretive," Kirkpatrick said, standing before the reinforced poured-concrete "bunker" the congregation built in 1972, in an era when oil was $2.55 a barrel.
The church has sought to demolish the Araldo Cossutta-designed chapel since 1991, making way for a smaller and more energy-efficient building. Those plans were disrupted when local preservation groups filed an application to designate the building as an historic landmark. The landmark application was essentially tabled until April 2007, when the church headquarters in Boston sold the land beneath the chapel to ICG Properties. ICG, a District-based developer, has proposed redeveloping the site to include a smaller church, as well as separate office and retail space.
The new plans revived the landmark application, and D.C.'s Historic Preservation Review Board voted unanimously in December 2007 to landmark the building.
At this point, the developer is likely to go ahead with its plans without incorporating the church. "At one time, there was a concept of development, but now we're on our own trying to solve our problem," Kirkpatrick said.
In addition to the lawsuit, the church plans to appeal the denial of its raze permit to the mayor's agent for historic review, which is the administrative judge for such appeals, said the church's attorney, Roman Storzer of Storzer & Greene PLLC, a D.C. law firm.
The church also has retained Jordan & Keys PLLC and The Becket Fund for Religious Liberty, both of D.C. Except for the Becket Fund, which is a pro bono legal firm, the church anticipates bearing the full cost of the litigation. "The church is paying for the lawsuit every Sunday through the collection plate," Kirkpatrick said.
The lawsuit asks the court to issue an order declaring D.C.'s landmarking process illegal and unconstitutional as applied to religious institutions. The church argues that it should not have been landmarked because existing federal laws prohibit state and local governments from imposing land use regulations that "substantially burden" religious exercise.
But ambiguity in those laws and conflicting court decisions make it unclear whether churches can actually exempt themselves from the historic preservation process.
D.C. preservation officials, who say the structure is an important example of Brutalist architecture, argue that a landmark designation by itself does not impose a substantial burden on churches or violate their constitutional rights.
"The courts have been uniform in holding that … landmarking itself does not interfere with a religious institution's right to practice its religion," Tersh Boasberg, chairman of the preservation board, told the church at the December 2007 landmarking hearing, citing a 1990 federal appeals decision.
Boasberg is also a member of the Committee of 100 on the Federal City, the organization that filed the original landmark application. The church argues that Boasberg should have recused himself from the landmarking and demolition permit decisions. Boasberg could not be reached for comment.
The church alleges that the 37-year-old building demands expensive upkeep and maintenance for the small congregation - it costs $8,000 to assemble scaffolding to change lightbulbs - and contains uninsulated walls that retain moisture and chill the rooms. With the landmark application hanging over its head for 17 years, the church has been unable to replace the building. The church says the application "has had the effect of stifling the religious exercise of the church for 17 years."
Standing inside the church's sanctuary, which itself resembles D.C Superior Court - or a Metro station - one church member expressed her hope that the suit would set precedent for other churches facing historic preservation. "The preservation board sees this as an icon of architecture," said Lois Khairallah. "So every time I put something in the collection plate, a portion of that is going to support an icon of architecture rather than the mission and outreach of the church."
The suit appears to be one of the first landmarking cases brought under the most recent federal religious rights law, the Religious Land Use and Institutionalized Persons Act of 2000. "It's quite a unique situation," said Storzer, whose firm has represented "scores" of religious organizations in land use cases. "I'm not aware of any other federal RLUIPA case that really pits church against state in the historic preservation arena."
In addition to its federal lawsuit and its administrative appeal, the church is also pushing for D.C. legislation to exempt all religious property from historic designation - including churches that were designated as far back as 1993 - if the church objects and submits a statement that designation would burden its religious exercise.
Councilman Jack Evans, D-Ward 2, introduced a measure to that effect in March, then withdrew it days later. Councilman Marion Barry, D-Ward 8, later introduced identical legislation June 10. With the council in recess, that bill will not be considered until September at the earliest.