Amicus Curiae Brief — City of Seattle v. First Covenant Church of Seattle

—

4)

No. 90-892

> IN THE

>

™~ Supreme Court of the United States

OCTOBER TERM, 1990

THE City OF SEATTLE,

Petitioner,

V.

FIRST COVENANT CHURCH OF SEATTLE, WASHINGTON,

Respondent.

On Petition for a Writ of Certiorari to the Supreme

Court of the State of Washington

MOTION FOR LEAVE TO FILE AND BRIEF OF

THE NATIONAL TRUST FOR HISTORIC PRESERVATION

AS AMICUS CURIAE IN SUPPORT OF

THE PETITIONER CITY OF SEATTLE

Davip A. DOHENY

General Counsel

ANDREA C. FERSTER

Assistant General Counsel

(Counsel of Record)

ELIZABETH S. MERRITT

Assistant General Counsel

National Trust for Historic

Preservation in the United States

1785 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 673-4035

Counsel for the National Trust for

Historic Preservation in the

United States

February 8, 1991

L

arn aar aE

FRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1990

No. 90-892

THE CITY OF SEATTLE,

Petitioner,

Vv.

First COVENANT CHURCH OF SEATTLE, WASHINGTON,

Respondent.

On Petition for a Writ of Certiorari to the —

Supreme Court of the State of Washington

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF OF

THE NATIONAL TRUST FOR HISTORIC PRESERVATION

IN SUPPORT OF THE PETITIONER CITY OF SEATTLE

_ Pursuant to Rule 36.1, the National Trust for His-

toric Prese. vation in the United States (‘‘National

Trust’’) respectfully moves for leave to file the at-

tached brief as amicus curiae in support of the City

of Seattle’s Petition for a Writ of Certiorari to the

Washington Supreme Court in this case. The City of

Seattle has consented to the filing of the brief, as

evidenced by the letter filed with the Clerk of this

Court. However, Respondent First Covenant Church

has not consented.

The National Trust is the leading national organi-

zation in the field of historic preservation. It was

chartered by Congress in 1949 as a private, chari-

table, educational, and nonprofit corporation to ‘‘fa-

cilitate public participation in the preservation of sites,

buildings and objects of national significance or in-

terest’? and to preserve and administer properties

“significant in American history and culture.” 16

U.S.C. § 468. In deciding to charter the National

Trust, Congress intended that ‘‘[the National Trust]

will mobilize and coordinate public interest and par-

ticipation in the preservation and interpretation of

sites and buildings from voluntary resources.” S. Rep.

No. 1110, 81st Cong., 1st Sess. 4 (1949), reprinted

in 1949 U.S. Code Cong. & Ad. News 2285, 2288. It

is in the spirit of this charter that the National Trust

seeks to express its views in this case.

The National Trust has more than 230,000 individ-

ual contributing members nationwide, and approxi-

mately 3,000 member organizations involved in local

and regional historic preservation activities. These

members have a substantial interest in upholding and

enhancing the effectiveness of local historic preser-

vation laws. In addition to owning and maintaining

historic properties, the National Trust furthers his-

toric preservation by providing extensive advisory and

technical services to local governments that have en-

acted landmark and historic district ordinances. The

National Trust has worked closely with many of the

more than 1,700 municipalities that have enacted such

ordinances.

The National Trust’s expertise on historic preser-

vation law is nationally recognized, particularly with

respect to the constitutional validity of local historic

preservation ordinances.! The National Trust has thus

examined the issues presented in this case from a

national perspective. It believes that historic preser-

vation contributes fundamentally to the welfare and

the vitality of this nation and that the decision in this

case will have a significant impact on the regulatory

authority of local governments to protect historic re-

ligious properties. The National Trust is concerned

that wholesale exemptions from landmark designation

for any category of historic properties, as distinct

from case-by-case requests for relief in order to make

specific changes in designated features of the prop-

erty, will undermine the integrity of historic preser-

vation laws without valid justification.

‘ The National Trust participated as amicus curiae in this case

before the Washington Supreme Court in support of the City

of Seattle’s motion for reconsideration. The National Trust also

participated as amicus curiae in Rector, Wardens, and Members

of the Vestry of St. Bartholomew’s Church v. City of New York,

914 F.2d 348 (2d Cir. 1990), petition for cert. filed, 59 U.S.L.W.

3433 (U.S. Dec. 10, 1990) (Nos. 90-899, 90-900), and Society of

Jesus v. Boston Landmarks Comm’n, No. SJC No. 5415 (Mass.

Dec. 31, 1990), which involve the applicability of preservation

laws to religious properties. The National Trust is also a plaintiff

in Alger, et al. v. City of Chicago, No. 90 C 2778 (N.D. Ill. Sept.

19, 1990), appeal docketed, No. 91-1029 (7th Cir., filed Jan. 3,

1991), which involves a constitutional challenge to a local ordi-

nance exempting religious properties from landmark designation.

The National Trust has also participated as amicus curiae in

the following cases before this Court involving local government

land use regulatory authority: First English Evangelical Lu-

theran Church v. County of Los Angeles, 482 U.S. 304 (1987);

MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340

(1986); San Diego Gas & Electric Co. v. City of San Diego, 450

U.S. 621 (1981); Agins v. City of Tiburon, 447 U.S. 255 (1980);

Penn Central Transp. Co. v. City of New York, 438 U.S. 104

(1978).

For the reasons stated above, the National Trust

respectfully requests that this Court grant its motion

to file the attached amicus curiae brief in support of

the petition for a writ of certiorari filed by the City

of Seattle in this case.

Respectfully submitted,

/s/ Andrea C. Ferster

Davip A. DOHENY

General Counsel

ANDREA C. FERSTER

Assistant General Counsel

(Counsel of Record)

ELIZABETH S. MERRITT

Assistant General Counsel

National Trust for Historic

Preservation in the United States

1785 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 673-4035

Counsel for the National Trust for

Historic Preservation in the

United States

February 8, 1991

i.

II.

TABLE OF CONTENTS

B. Regulatory Framework ...........ccccccceeeeeeees

C. First Covenant’s Challenge .....................

This Case Presents an Important Question

Concerning the Authority of Local Govern-

ments to Protect Historic Properties Through

Landmark Designation and Controls ...........

A. The Landmark Designation of Historic

Buildings, Including Historic Religious

Properties, Serves an Important Public

PD Wiskdinensictcccssandteninncientaenaesindssnceencine

B. The Washington Court’s Ruling Will Se-

verely Disrupt the Regulatory Authority

of Local Governments to Designate and

Protect Historic Landmarks ...................

This Case Raises a First Amendment Issue

of National Significance ...................cceeseeeeees

A. This Decision is in Direct Conflict with

Other State and Federal Court Decisions,

and Disregards Important U.S. Supreme

Court Precedents ............cccccccccccccssscceseees

B. Landmark Designation is a Neutral Reg-

ulatory Scheme and is Therefore Not

Properly Reviewed Under the Compelling

Governmental Interest Standard ............

CARAT. sstersevsnentyvennsensnssssinenemnasecsiincinaiitubedinitien

13

13

18

ii

TABLE OF AUTHORITIES

CASES Page

Alger v. City of Chicago, No. 90 C 2778 (N.D. Ill.

a 19, 1990), appeal docketed, No. 91-1029

ub oe ff 4 | eee 5

Church of St. Paul & St. Andrew v. Barwick, 67

N.Y.2d 510, 296 N.E.2d 188, 505 N.Y.S.2d 24,

cert. denied, 479 U.S. 985 (1986) ...............000 12

Employment Division v. Smith, 110 S. Ct. 1595

CRED cstastiencserpunsesviointioiensalincutiesdasiaeienenis 11,15,16,17

Hernandez v. Commissioner, 109 8. Ct. 2436

(TIRED -scistnncidssvenioiectscormnacsegeiansontigtlisossanpeinsnts 14-15,16

Jimmy Swaggart Ministries v. California Board of

Equalization, 110 S. Ct. 688 (1990) ............... 14,15

Penn Central Transportation Co. v. City of New

York, 488 U.S. 104 (1978) .....ccrcccrcccrcessseseee 2,8,13,17

Rector, Wardens, and Members of the Vestry of St.

Bartholomew’s Church v. City of New York,

914 F.2d 348 (2d Cir. 1990), petition for cert.

filed, 59 U.S.L.W. 3483 (U.S. Dec. 10,

RETEII . sssisheee'Nisdiesicannejeesiidsinnntdibenanaiidaaiebieebamannethhe 12,13,18

Society for Ethical Culture v. Spatt, 51 N.Y.2d 449,

415 N.E.2d 922 (N.Y. App. 1980) .................. 13

Society of Jesus v. Boston Landmarks Comm’n, No.

SJC No. 5415 (Mass. Dec. 31, 1990), ............. 10

Tony & Susan Alamo Foundation v. Secretary of

EOP, STE Ws Te CRMIUe cvcsnnccesnsessessnncesnesies 15

Wisconsin v. Yoder, 406 U.S. 205 (1972) .............. 16

FEDERAL STATUTES

National Historic Preservation Act (NHPA)

Se Sec ae I enesictiendecnstansatcneninctancinneeniinbian 1

OD Re: Be Oe GG, isicccssccictcneptctncstteeinticsin

BD Wess Oe GN Redacastsaendccenheeciasenaanetiiain eens i)

ili

Table of Authorities Continued

Page

Oe Fi i ED ciintnsisnbicicnetiusanabiannimisindiiabiiieans y)

Oe Ne A la a cocniniaennnndatenbbaneconien 3

I Eo onldeialionemnelionpini 3

FEDERAL REGULATIONS

Solas msaaemsc nN 9

LOCAL ORDINANCES

Seattle Municipal Code, §§ 25.12 et seq. (1977) ..... 4,5,12

Chicago Municipal Code, § 21-69.1 0... eee 5

MISCELLANEOUS

American Planning Ass’n, Responding to the Tak-

ings Challenge, Planning Advisory Service Re-

= No. 416, at 23 (R. Roddewig & C.

Ns IID ‘exéhitncnscemmedemnbianieetantnencesssee 8

National Trust for Historic Preservation, A Guide

to State Historic Preservation Programs

SUIS :ahelecnaanunlaltcksatheidssantigkesnenbieduinndistiianediniediantsaces 8

National Trust for Historic Preservation, State En-

abling Legislation for Local Preservation Com-

ME eeccesticnteiictcinstcinntieinplanciaknsinenninnns 8

National Trust for Historic Preservation, State Sys-

tems for Designating Historic Properties and

the Results of Designation (1987) ...............c00 8

~

q

J

P ;

oe

-

'

a)

' — _—— —

i

f

:

- t

:

he 7

*@

r ~~

‘

» _ -~

@

3

.

om |

i

—

:

¢

'

es

t

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1990

No. 90-892

THE CiTy OF SEATTLE,

Petitioner,

Vv.

FIRST COVENANT CHURCH OF SEATTLE, WASHINGTON,

Respondent.

On Petition for a Writ of Certiorari to the Supreme

Court of the State of Washington

AMICUS CURIAE BRIEF OF

THE NATIONAL TRUST FOR HISTORIC PRESERVATION

IN SUPPORT OF THE PETITIONER CITY OF SEATTLE

INTEREST OF AMICUS CURIAE

The National Trust for Historic Preservation in the

United States (“‘the National Trust’) was chartered

by Congress in 1949 as a private charitable, educa-

tional, and nonprofit corporation to “‘facilitate public

participation in the preservation of sites, buildings

and objects of national significance or interest’’ and

to preserve and administer properties “significant in

American history and culture.” 16 U.S.C. § 468. The

National Trust has more than 230,000 individual

members nationwide, and approximately 3,000 mem-

ber organizations involved in local and regional his-

toric preservation activities. In addition to owning and

maintaining historic properties, the National Trust

furthers historic preservation by providing extensive

advisory and technical services to local governments

that have enacted landmark and historic preservation

ordinances.

STATEMENT

A. Introduction

While Americans have always treasured their his-

tory and traditions, it is only in the past 60 years

that local, state, and federal laws have been expanded

to protect our physical heritage—the nation’s historic

buildings, places, and neighborhoods. In the 1930s,

the cities of Charleston, South Carolina and New Or-

leans, Louisiana adopted the first local historic pres-

ervation ordinances in the United States. By the

1960s, the threat of wholesale destruction of historic

neighborhoods by urban renewal projects and high-

ways had engendered a broad national historic pres-

ervation movement, and led to the adoption of the

National Historic Preservation Act, 16 U.S.C. § 470

et seq., and the enactment of state and local historic

preservation laws across the country.

By 1978, when this Court issued its landmark opin-

ion in Penn Central Transportation Co. v. City of New

York, 438 U.S. 104, 107 (1978), all 50 states and more

than 500 local communities had enacted historic pres-

ervation laws; today that number has grown to more

than 1,700.1 Penn Central laid to rest any doubts

1 See infra note 6.

about the constitutionality of the local regulation of

historic landmarks, which enhance the quality of life

for all. The decision of the Washington Supreme Court

in this case presents a serious threat to these wide-

spread local preservation efforts, by creating a whole-

sale exemption from the protections that would

otherwise be afforded for historic properties owned

by religious institutions.

Religious properties often have historic, community,

and architectural significance that makes them par-

ticularly worthy of preservation. According to the Na-

tional Park Service, 5,524 religious properties are

listed in the National Register of Historic Places.? But

this number tells only part of the story. In cities and

towns across the country, churches and other religious

buildings are often literal landmarks—giving residents

and visitors a sense of the fabric of community life.

Religious buildings often dominate the streetscapes

and skylines, adding beauty and inspiration to many

towns and neighborhoods. Religious buildings act as

anchors in their communities, providing, in addition

to their religious and spiritual missions, outreach to

broad segments of the public for cultural enrichment,

social services, and a variety of private sector activ-

ities.

2 Statistics provided on January 14, 1991, by Jon Byrn, Data

Base Manager, U.S. Department of the Interior, Keeper of the

National Register. Unlike the protections afforded by local land-

mark ordinances such as Seattle’s, National Register listing pro-

vides protection only with respect to the actions of federal

agencies, such as federally-funded highways or urban renewal

projects, and non-federal activities that are regulated by federal

licenses or permits. See National Historic Preservation Act, 16

U.S.C. §§ 470f, 470h-2.

Religious buildings also have played an important

role in the history of our nation, from Boston’s Old

North Church, which signalled Paul Revere to start

his historic ride, to the Ebenezer Baptist Church in

Atlanta, where Rev. Martin Luther King, Jr. devel-

oped the moral precepts of the civil rights movement

in the 1960s. More than perhaps any other category

of buildings, religious properties are a vital compo-

nent of our physical and social environment from coast

to coast, from Park Avenue to Main Street.

B. Regulatory Framework

The Seattle Landmarks Preservation Ordinance cre-

ates a three-step process for protecting historic sites

in Seattle. The first step is the nomination and review

of a site for designation as a landmark. The desig-

nation. decision is made by an expert agency—the

Landmarks Preservation Board—based on specific cri-

teria of historic or architectural significance, after a

public nominating meeting and a public hearing on

the designation. Seattle Mun. Code §§ 25.12.350-

25.12.480 (App. 53a-59a).

The second step is to develop appropriate controls

and incentives to preserve the significant features of

the landmark. This is done by agreement with the

owner where possible; otherwise upon the recommen-

dation of a hearing examiner. These controls are then

codified in a designating ordinance, which must be

approved by the City Council. Jd. §§ 25.12.490-

12.25.660 (App. 59a-67a). The designating ordinance

specifies the features of the landmark that will re-

quire the approval of the Landmarks Preservation

Board prior to making any significant changes. Jd.

§§ 25.12.500-25.12.630 (App. 60a-66a). The ordinance

specifically provides that in no event may the des-

ignation deprive the owner of a reasonable economic

use of the property. Jd. § 25.12.580 (App. 63a-64a).

The third step in the process comes into play if the

property owner wishes to make changes in the pro-

tected features of the property. In order to do so,

the owner must apply for a certificate of approval

from the Seattle Landmarks Commission. Id.

§ 25.12.670 (App. 68a). An application for a certificate

of approval is evaluated based on a number of factors,

including the economic consequences of denying the

certificate, the extent to which other alternatives are

available to achieve the owner’s objectives, and the ~

extent to which the proposed alteration may be nec-

essary to meet the requirements of another law. Jd.

§ 25.12.750 (App. 71a-72a).

Virtually all preservation ordinances, including Se-

attle’s, allow exceptions based on the particular cir-

cumstances of an individual property owner, but such

exceptions are only allowed on a case-by-case basis,

in the context of evaluating a concrete proposal to

make changes in the landmarked property or to ac-

commodate the specific needs of the property owner.?

In fact, conflicts between the interests of property

*The National Trust is aware of only one preservation ordi-

nance that categorically exempts historic religious properties

from landmark designation. The City of Chicago has enacted a

broad exemption for religious properties from its landmarks or-

dinance. See Chicago Mun. Code § 21-69.1. This legislative ex-

emption is currently being challenged as violative of the first

amendment’s establishment clause. See Alger v. City of Chicago,

No. 90 C 2778 (N.D. Ill. Sept. 19, 1990), appeal docketed, No.

91-1029 (7th Cir., filed Jan. 3, 1991) (district court dismissed

plaintiffs’ claim on grounds that alleged harm to church was not

yet imminent and therefore plaintiffs did not yet have standing).

owners and the goals of historic preservation are the

exception rather than the rule. The primary objective

cf most landmark ordinances, including Seattle’s, is

to provide an administrative review process that fa-

cilitates dialogue and negotiation between the prop-

erty owner and preservation experts, in order to assist

the property owner in making sure that proposed al-

terations or changes in the property do not inad-

vertently or unnecessarily harm significant features

of the property.

C. First Covenant’s Challenge

This case well illustrates the problems of creating

wholesale exemptions from preservation ordinances at

the landmark designation stage. First Covenant

Church has never alleged that it has any plans either

to renovate, alter, or demolish its building, or to take

any other action that would be regulated by the Se-

attle Landmarks Preservation Ordinance. The Church

brought this case on the ground (among others) that

the landmark designation of the exterior of its build-

ing, alone, substantially burdened its right to free

exercise of religion. The Washington Supreme Court

agreed, concluding that the ‘‘aesthetic and community

values associated with landmark preservation’ were

“clearly outweighed” by the burden on the Church’s

free exercise rights. (App. 17a).

Significantly, the Church did not allege that the

landmark designation had any impact—even a poten-

tial future impact—on its practice of religion. Rather,

it alleged burdens of the sort that any property owner

might encounter in connection with land use regula-

tion: the burden that some future alteration proposal

might require secular review; the burden, in connec-

tion with such a proposal, of paperwork, negotiations,

and hearings; and the burden of “‘uncertainty’”’ as to

whether approval of the proposal would he granted.

(App. 5a)

Based on these asserted burdens, and essentially on

the ground that a religious organization should not

have to interact with secular authorities except on

secular matters of compelling importance, the Wash-

ington Supreme Court effectively exempted buildings

owned by religious institutions from landmark des-

ignation, without regard to any actual hardship or

interference with the practice of religion. This reli-

gious exemption warrants review by this Court.

ARGUMENT

I. This Case Presents an Important Question Concern-

ing the Authority of Local Governments to Protect

Historic Properties Through Landmark Designation

and Controls.

A. The Landma-k Designation of Historic Buildings, In-

cluding Historic Religious Properties, Serves an Im-

portant Public Purpose.

The importance of preserving America’s architec-

tural and historic resources through the enactment of

historic preservation laws has received increasing rec-

ognition during the last half-century. Beginning with

our nation’s first preservation ordinance, adopted by

the City of Charleston, South Carolina, in 1931, state

and local governments around the country have

adopted laws that provide for the designation and

protection of buildings, sites, and districts that em-

body exceptional architecture or make a signifivant

contribution to our local, state, or national heritage.

On the local level, historic preservation is now a

well-established and rapidly growing form of land use

regulation. This is evidenced by the dramatic increase

in the number of communities that have adopted some

form of historic preservation ordinance, rising from

approximately 500 in 1978‘ to an estimated 1,500 in

1989.5 In 1991, more than 1,700 communities in all

50 states provide legal protection for historic re-

sources.* These historic preservation ordinances have

proven to be an effective vehicle for protecting and

preserving the best of our nation’s heritage for future

generations, thereby enhancing the quality of life for

all. See Penn Central Transportation Co. v. City of

New York, 438 U.S. 104, 108-09 (1978).’

The importance of historic preservation has been

recognized at the federal level as well. In 1966, Con-

gress enacted the National Historic Preservation Act

(NHPA), which established a national policy that ‘‘the

historical and cultural foundations of the Nation

4 See National Trust for Historic Preservation, A Guide to

State Historic Preservation Programs (1976), cited in Penn Cen-

trai Transp. Co. v. City of New York, 438 U.S. 104, 107 n.1

(1978).

5 See American Planning Ass’n, Responding to the Takings

Challenge, Planning Advisory Service Report No. 416, at 23 (R.

-Roddewig & C. Duerkson eds. 1989).

6 Statistics compiled by the National Park Service (February

1990), and updated by the National Trust for Historic Preser-

vation (February 1991).

7In addition to the 1,700 local jurisdictions that have adopted

historic preservation ordinances, every state government has en-

acted a historic preservation law, as this Court recognized in

Penn Central Transp. Co. v. City of New York, 438 U.S. at 107.

See also National Trust for Historic Preservation, State Systems

for Designating Historic Properties and the Results of Desig-

nation (1987); National Trust for Historic Preservation, State

Enabling Legislation for Local Preservation Commissions (1984).

should be preserved as a living part of our community

life and development in order to give a sense of ori-

entation to the American people.” 16 U.S.C.

§ 470(b\(2).2 The NHPA gives recognition to the crit-

ical role of local governments in the preservation of

historic resources, through the Certified Local Gov-

ernment program. This program, administered by the

National Park Service, allows local governments to

share in their state’s allocation of federal money from

the Historic Preservation Fund if they have enacted

comprehensive preservation ordinances that satisfy

the criteria spelled out in 16 U.S.C. § 470a(c) and 36

C.F.R. Part 61. According to the National Park Ser-

vice, 633 communities in the United States qualify as

Certified Local Governments.

B. The Washington Court’s Ruling Will Severely Disrupt

the Regulatory Authority of Local Governments to Des-

ignate and Protect Historic Landmarks.

By declaring that the interest in preserving historic

properties is “clearly outweighed’”’ by the burden of

submitting building plans for secular review, the

Washington Supreme Court has effectively exempted

religious buildings altogether from preservation or-

dinances. This decision has several unfortunate con-

sequences.

First, if the view of the Washington Supreme Court

is adopted in other jurisdictions, the decision could

® Consistent with this policy, the NHPA strongly encourages

the establishment of federal, state, and local programs for sur-

veying and inventorying historic properties and nominating el-

igible properties for listing in the National Register of Historic

Places, the list of districts, sites, buildings, structures, and ob-

jects significant in American history, architecture, archeology,

engineering, and culture. 16 U.S.C. § 470a.

10

have the effect of exempting thousands of buildings

of historical and architectural significance—many of

them true national treasures—from local preservation

efforts solely because they are owned by religious

institutions.? Without effective regulatory protections,

there is no practical way for Seattle, or other cities

and towns across the nation, to preserve these prop-

erties as living parts of their communities. As a re-

sult, our nation’s religious buildings will become

endangered.

Moreover, church buildings are often an integral

part—and in many cases, the anchors—of the larger

historic districts and neighborhoods that embody our

heritage. Exempting religious properties from land-

mark protection leaves these buildings vulnerable to

demolition, paving the way for the construction of

parking lots or office towers in their place. The con-

sequences to the physical and social fabric of these

historic communities will be severe.

Nor are the implications of the Washington

Supreme Court’s decision limited to historic preser-

vation. The “‘burdens’’ allegedly imposed by the land-

mark designation of First Covenant Church (i.e.,

paperwork, “‘uncertainty,’’ and the necessity of in-

teraction with secular authorities) are hardly unique

®In fact, at least one other court has also been receptive to

a free exercise challenge by a religious property owner under

a state constitution. See Society of Jesus v. Boston Landmarks

Comm'n, No. SJC-5415 (Mass. Dec. 31, 1990) (holding that lan/-

mark designation of the interior worship space of a church vi-

olated the free exercise clause of the Massachusetts Constitution,

notwithstanding the fact that the landmarks commission had

ultimately permitted the church to make the requested interior

alterations.)

11

to landmark designation. If religious organizations

cannot be required to interact with secular authorities

and prepare secular “‘paperwork’”’ except for the most

compelling reasons, the authority of local govern-

ments to implement land use and other regulatory

programs, including zoning laws, will also be threat-

ened.?°

Finally, the wholesale exemption sanctioned by the

Washington Supreme Court is in no way necessary

to accommodate changes that may be needed in order

for religious property owners to carry out their re-

ligious and charitable programs. Like most such or-

dinances, Seattle’s Preservation Ordinance provides a

process for evaluating, on a case-by-case basis, pro-

posals for changes to significant features of a des-

ignated landmark after the property owner makes a

concrete proposal in an application for a certificate

of approval. Only in the context of a concrete proposal

for altering or demolishing the landmark is there any

real ability to determine whether an exception is nec-

essary to provide effective relief to the property

owner, or whether alternative solutions may allow the

property owner to more effectively utilize its building

1 As this Court recently noted in Employment Division v.

Smith, 110 S. Ct. 1595 (1990):

The rule respondents favor would open the prospect of

constitutionally required religious exemptions from civic ob-

ligations of almost every conceivable kind.... The First

Amendment’s protection of religious liberty does not re-

Id. at 1605-06 (citations omitted).

12

without destroying designated features of the land-

mark."

Here, the Seattle ordinance provides a flexible ad-

ministrative mechanism for the review of proposed

changes to designated features of the landmark, tak-

ing into account the special financial or programmatic

needs of the property owner. Id. §§ 25.12.490-

25.12.660 (App. 59a-67a). Indeed, the designating or-

dinance for First Covenant Church itself illustrates

this level of accommodation. The ordinance specifi-

cally requires the Landmarks Board to approve all

religiously motivated alterations, i.e., for any exterior

alterations ‘‘necessitated by changes in liturgy.” (App.

83a). Thus, a wholesale exemption from preservation

regulation is unnecessary to protect the legitimate

interests of the Church.

1 For example, in Rector, Wardens, and Members of the Vestry

of St. Bartholomew’s Church v. City of New York, 914 F.2d 348

(2d Cir. 1990), petition for cert. filed, 59 U.S.L.W. 3433 (U.S.

Dec. 10, 1990) (Nos. 90-899, 90-900), the church’s free exercise

challenge was raised only after the New York City Landmarks

Commission had reviewed and disapproved specific plans by the

church to demolish its historic community house. See also Church

of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 296 N.E.2d

183, 505 N.Y.S.2d 24, cert. denied, 479 U.S. 985 (1986):

The ultimate resolution of this constitutional issue—i.e.,

whether the Landmarks Law, as applied, prevents or se-

riously interferes with plaintiff's ability to carry out its

charitable purpose—will require a careful examination of

facts not yet developed pertaining to plaintiffs financial

situation and to whatever action the Commission takes with

respect to plaintiffs rebuilding program.

296 N.E.2d at 190-91 (citation omitted). This was also the ra-

tionale of the trial court in First Covenant, which concluded that

the case was not ripe for review. (App. 30a-31a.)

So

13

II. This Case Raises a First Amendment Issue of Na-

tional Significance.

A. This Decision is in Direct Conflict with Other State

and Federal Court Decisions, and Disregards Important

U.S. Supreme Court Precedents.

The Washington Supreme Court’s decision conflicts

directly with a recent decision of the Second Circuit

in Rector, Wardens, and Members of the Vestry of St.

Bartholomew’s Church v. City of New York, 914 F.2d

348 (2d Cir. 1990), petition for cert. filed, 59 U.S.L.W.

3433 (U.S. Dec. 10, 1990) (Nos. 90-899, 90-900) (‘‘St.

Bartholomew’s’’). In that case, the owner of a historic

religious building in New York City challenged the

landmarks commission’s decision denying its request

to demolish its landmarked community house in order

to construct a 47-story office tower. The court held

that the commission’s denial of the demolition permit

did not unconstitutionally impair the church’s ability

to carry out its religious mission.'? See also Society

for Ethical Culture v. Spatt, 51 N.Y.2d 449, 415

N.E.2d 922 (N.Y. App. 1980) (landmark designation

of religious organization’s meeting house did not in-

terfere with religious organization’s free exercise of

its religious activities).

The decision below, while in conflict with St. Bar-

2 The Second Circuit also held, applying this Court’s holding

in Penn Central Transp. Co. v. City of New York, 438 U.S. 104

(1978), that the landmarks commission’s actions did not uncon-

stitutionally ‘‘take’’ the church’s property without just compen-

sation under the fifth amendment. The Washington Supreme

Court’s decision in First Covenant Church did not address the

church’s additional claim that landmark designation, alone, ef-

fects a ‘“‘taking’”’ of the church’s property, presumably because

Penn Central is dispositive on this issue.

14

tholomew’s, in fact poses a broader and more impor-

tant question. Here the question is whether the mere

landmark designation of a church building violates

free exercise rights, without regard to whether the

property owner has been denied any particular use

of the building, or whether the designation will result

in actual hardship or interference with religious prac-

tice. The decision in St. Bartholomew’s, by contrast,

represents a balancing of competing interests in the

context of a specific proposal to demolish a land-

mark.’ If the decision of the Washington Supreme

Court were correct, the issue in the St. Bartholomew’s

case would never be reached.

The Washington Supreme Court also failed to apply

relevant Supreme Court precedents that specifically

set forth the appropriate analytical framework for

evaluating a free exercise challenge to neutral gov-

ernment regulation. This Court has repeatedly upheld

the applicability of a variety of neutral government

regulatory programs to religious institutions. These

cases confirm that the financial and administrative

consequences of landmark designation simply do not

create a judicially cognizable burden on free exercise

rights. See, e.g., Jimmy Swaggart Ministries v. Cal-

vforma Board of Equalization, 110 S. Ct. 688, 696-

97 (1990) (the free exercise clause does not guarantee

that religious groups will be free from all financial

and administrative burdens of government); Hernan-

18 While affirming the legitimate authority of local govern-

ments to regulate historic religious properties, the St. Bartho-

lomew’s decision does not close the door on free exercise claims

by religious property owners, where a iandmarks commission

oversteps its bounds and bars an activity central to the property

owners’ expression of religious faith, or where the owner is

unable to use the building to carry out its religious mission.

15

dez v. Commissioner, 109 S. Ct. 2136, 2147-48 (1989)

(disallowance of tax deduction for religious auditing

and training services did not constitute a substantial

burden on free exercise rights); Tony & Susan Alamo

Foundation v. Secretary of Labor, 471 U.S. 290, 304-

05 (1985) (recordkeeping and “‘paperwork’’ require-

ments of Fair Labor Standards Act did not burden

the free exercise rights of individuals associated with

religious foundation).

The Washington Supreme Court disregarded this

Court’s establishment clause rulings as well. As the

Court recognized in Jimmy Swaggart, the mere ne-

cessity for interaction with the state resulting from

governmental regulation does not result in excessive

government entanglement under the first amendment.

Jimmy Swaggart, 110 S. Ct. at 697-99. See also Tony

and Susan Alamo Foundation, 471 U.S. at 305-06.

Thus, the alleged interference with the Church’s free-

dom to alter the exterior of the church structure by

requiring proposed changes to be reviewed by the

Seattle Landmarks Commission, and any present ‘‘un-

certainty” such review may engender, cannot be char-

acterized as an infringement of protected first

amendment interests.

Finaliy, this Court’s recent decision in Employment

Division v. Smith, 110 S. Ct. 1595, 1600 (1990),

firmly rejected the approach embraced by the Wash-

ington Supreme Court of requiring the City to dem-

onstrate a ‘“‘compelling’’ governmental interest in

4 Smith was decided after the Washington Supreme Court’s

original decision in First Covenant, but nearly five months prior

to the court’s decision to deny reconsideration.

16

order to regulate historic religious properties."* In

Smith, this Court held that the ‘‘compelling interest

test’”’ was not applicable to free exercise challenges

to valid and neutral laws of general applicability, stat-

ing:

To make an individual’s obligation to obey such

a law contingent upon the law’s coincidence with

his religious beliefs, except where the state’s in-

terest is ‘‘compelling’’—permitting him, by virtue

of his beliefs, ‘‘to become a law unto himself,”’—

contradicts both constitutional tradition and com-

mon sense. |

110 S. Ct. at 1603 (footnote and citation omitted).

The Washington Supreme Court, by contrast, con-

cluded that the ‘‘aesthetic and community values as-

sociated with landmark preservation’’ were “clearly

outweighed” by the infringement on the church’s free

exercise rights. (App. 17a).

The ‘“‘interference’’ and “uncertainty” resulting

from the landmark designation alleged by the Church

in no way burdens or infringes the religious practice

of any individual, but merely subjects First Covenant

as an institutional property owner to a reasonable,

‘6’ The Washington Supreme Court referred to the ‘compelling

interest” test as “‘strict scrutiny.”’ (App. 10a-11a).

‘6 In fact, the Washington Supreme Court did not even cor-

rectly apply the compelling state interest test as enunciated in

cases such as Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). The

question of whether the government regulation serves a com-

pelling government interest is reached only if the regulation

places a “substantial burden on the observation of a central

religious belief or practice.” Hernandez v. Commissioner, 109 S.

Ct. 2136, 2148 (1989) (emphasis added).

ee ee 3

17

neutral, government police power regulation of the

exterior of its church building. Accordingly, the in-

juries alleged by First Covenant simply do not satisfy

the standards for first amendment violations estab-

lished by this Court.

B. Landmark Designation is a Neutral Regulatory Scheme

and is Therefore Not Properly Reviewed Under the

Compelling Governmental Interest Standard.

The Seattle Landmarks Ordinance is clearly a ‘‘valid

and neutral law of general applicability’ entitled to

presumptive validity under this Court’s decision in

Employment Division v. Smith, 110 S. Ct. at 1600

(citation omitted). The question of whether compre-

hensive historic preservation ordinances place discrim-

inatory and arbitrary burdens on affected property

owners has already been decided by this Court in

Penn Central Transportation Co. v. City of New York,

438 U.S. 104 (1978):

In contrast to discriminatory zoning, which is the

antithesis of land-use control as part of some

comprehensive plan, the New York City law em-

bodies a comprehensive plan to preserve struc-

tures of historic or aesthetic interest wherever

they might be found in the city....

Equally without merit is the related argument

that the decision to designate a structure as a

landmark “‘is inevitably arbitrary or at least sub-

jective... .”

Id. at 132 (footnote omitted).

Contrary te the Washington Supreme Court’s sug-

gestion, the fact that the Seattle Landmarks Pres-

ervation Ordinance is specifically applied to religious

buildings does not remove the presumption of validity

18

that neutral regulatory laws are otherwise accorded.

The Second Circuit specifically rejected this view in

St. Bartholomew’s, holding instead that “(t]he Land-

marks Law is a facially neutral regulation of general

applicability within the meaning of Supreme Court

decisions.” 914 F.2d at 354. The court explained:

It is true that the Landmarks Law affects many

religious buildings.... Nevertheless, we do not

understand those facts to demonstrate a lack of

neutrality or general applicability. Because of the

importance of religion, and of particular churches,

in our social and cultural history, and because

many churches are designed to be architecturally

attractive, many religious structures are likely to

fall within the neutral criteria—having ‘special

character or special historical or aesthetic interest

or value’’—set forth by the Landmarks Law. This

however, is not evidence of an intent to discrim-

inate against, or impinge on, religious belief in

the designation of landmark sites.

Id. (citation omitted). Because the Seattle Landmarks

Preservation Ordinance is a neutral government reg-

ulation of general applicability, it should be deemed

presumptively valid against the free exercise chal-

lenge raised by the First Covenant Church.

CONCLUSION

The danger of the Washington Supreme Court’s

decision lies in its potential to sanction wholesale ex-

emptions for religious properties from landmark or-

dinances, without any individualized inquiry into the

extent to which the regulations impose genuine hard-

ship or restraints on religious practice. Such exemp-

tions are in no way necessary to protect the legitimate

19

interests of religious property owners. To the con-

trary, such exemptions would threaten the authority

of local governments to implement land use regulation

and, indeed, a number of neutral regulatory programs

that may require religious organizations to interact

with secular authorities. Accordingly, for the fore-

going reasons, the National Trust respectfully re-

quests that the petition for a writ of certiorari be

granted.

Respectfully submitted,

Davip A. DOHENY

General Counsel

ANDREA C. FERSTER

Assistant General Counsel

(Counsel of Record)

ELIZABETH S. MERRITT

Assistant General Counsel

National Trust for Historic

Preservation in the United States

1785 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 673-4035

Counsel for the National Trust for

Historic Preservation in the

United States

February 8, 1991