Amicus Curiae Brief — Church of St. Paul & St. Andrew v. BarWick

A C i

= Supreme Court, U.S,

In THE NOV 3 1883

SUPREME COURT OF THE UNITED STATES: r. sraniot, J

OCTOBER TERM, 1986 en

CHURCH OF ST. PAUL AND ST. ANDREW,

Petitioner,

v.

KENT L. BARWICK, et. al.,

Respondents.

Brief of the Roman Catholic Archdiocese of New York

and the Roman Catholic Diocese of Brooklyn, New

York, as Amici Curiae in Support of the Petition for a

Writ of Certiorari to the New York Court of Appeals

GEORGE J. McCoRMACK

Counsel of Record for Amici Curiae

GErEorGE A. PHILLIPS

Cusack & STILEs

Counsel for the Roman Catholic

Archdiocese of New York,

Amicus Curiae

61 Broadway

New York, New York 10006

(212) 480-0400

KEVIN M. KEARNEY

HuRLEY, KEARNEY & LANE

Counsel for the Roman Catholic

Diocese of Brooklyn, New York,

Amicus Curiae

32 Court Street

Brookiyn, New York 11201]

(718) 852-5900

(Questions Presented

I. Is the matter ripe for adjudication?

II.

III.

Is the proffered ‘“‘administrative remedy”’ illusory, reli-

giously discriminatory and/or otherwise Constitutionally

defective?

Does the New York City landmarks law, and the scenario

whereby a building is designated as a landmark, meet

the minimal Constitutional standards guaranteeing:

A. freedom from governmental interference with the free

exercise of religion,

B. due process of law,

C. just compensation for a governmental taking of

property, and

D. equal protection of laws?

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TABLE OF CONTENTS

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I. The matter is ripe for adjudication ...........

II. The ‘“‘administrative remedy” proffered to Peti-

tioner:

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B. necessitates an unconstitutional entanglement

by government with the internal religious

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D. discriminates on its face cui charitable

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III. The New York City landmarks law, and the

scenario whereby a building is designated as a

landmark, utterly fail to meet the minimal Con-

stitutional standards guaranteeing:

A. freedom from governmental interference with

the free exercise of religion. ..............

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C. just compensation for a governmental taking

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D. equal protection of law ..........ce.cee0.

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TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)...

Brown v. Board of Education, 347 U.S. 483 (1954).....

Carey u. mrown, 247 U.S. 455 (1980) ... cc cccccccccs

See Bee, Ste Wi. OOS (1979)... 2 cnc ccc cccccs

Keyishian v. Board of Regents, 385 U.S. 589 (1967) ....

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............

Nm NO =

ll TABLE OF AUTHORITIES

Lutheran Church in America v. City of New York, 35

N.Y .20 621, SEG WE SOS GIST) a ieiceccaccccccce

Matter of Westchester Reform Temple v. Brown, 22

ie Ree SE 5-50 5a hae eae a sesh dere kicwes

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ........

Penn Central Trans. Co. v. City of New York, 42

N.Y.2d 324, aff'd 438 U.S. 104, reh. den. 439 U.S. 883

EEE AS CARUESRSNKEE RULE EDR Rae CR RESO RiKOD

Secretary of State of Maryland v. Joseph H. Munson

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Stanley v. Illinois, 405 U.S. 645 (1972) ............ te

Walz v. Tax Commission, 397 U.S. 664 (1970) ........

Statutes:

New York City landsmarks preservation law (New York

City Administrative Code, Ch. 8-A:

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TABLE OF AUTHORITIES ill

§207-B.0-d. 2. 2c ecccccccccccccsccccreccccccees 10

§207-8.0-£.(2) 0. eee eececcecceccescccereecesaces 10

§207-8.0-g.(2) .. ee eeeeeeececeeececceceesereces 11

§207-B.0-1. 2... cc cescccccccccccsccccccccccccees 10

§207-8.0-1.(1) . 22s cece cece reece ccc ee eeeerecees 9, 10

§207-8.0-1.(2) 2 eee cece reece eee eeceereeseeeces 10, 13

§207-8.0-1.(3) . 22 cece cece cere eee eeecrereeeeeeces 13

§207-8.0-1.(4)(a) .- eee e cece eee eee eee scene eencee 11

§207-8.0-1.(5)(A) . eee cece eee eee e eee eeeeereeee 11, 12

§207-8.0-1.(5)(D)... eee e eee cere eee eeeeeereeeeees 12

Other Authorities:

Davis, Administrative Law, Vol. 4, §25.7 (3d Be) acces 3

Freund, The Police Power, §511, pp. 546-547.......-- 17

In THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

CHURCH OF ST. PAUL AND ST. ANDREW,

Petitioner,

U.

KENT L. BARWICK, et. al.,

Respondents.

Brief of the Roman Catholic Archdiocese of New York

and the Roman Catholic Diocese of Brooklyn, New

York, as Amici Curiae in Support of the Petition for a

Writ of Certiorari to the New York Court of Appeals

Interest of the Amici Curiae

The Archdiocese of New York is a diocese of the Roman

Catholic Church with ecclesiastical jurisdiction in the Counties

of New York, Bronx and Richmond in New York City, and in

seven other counties of the State of New York. It is administered

by the Archbishop of New York, His Eminence John Cardinal

O’Connor, who exercises authority over 410 parishes having

over 1,200 structures, serving an area with a total population of

more than 5,000,000 of whom approximately 1,8000,000 are

Catholics.

The Diocese of Brooklyn is a diocese of the Roman Catholic

Church with ecclesiastical jurisdiction in the New York City

Counties of Kings (Brooklyn) and Queens. It is administered by

the Bishop of Brooklyn, His Excellency Francis J. Mugavero,

who exercises authority over 221] parishes having over 600

structures, serving an area with a total population of more than

4,000,000 of whom approximately 1,400,000 are Catholics.

The interest of the amici curiae is not primarily based on the

fact that they have contributed a very large number of low-rise,

distinctive structures for the free enjoyment of all citizens. In

fact, it is their desire and expectation that this ancient archi-

tectural tradition will continue. Far more importantly, they are

a Se

2

deeply concerned that, in the occasional cases wherein religious

structures need to be modified, demolished or replaced in order

to carry on the overriding religious mission and ministry of the

amici curiae and of all religious owners, these valuable proper-

ties, and potentially all other resources of the owning religious

organizations, resources that were and will be contributed to

serve the cause of religion, are being confiscated by government

without compensation to serve the non-religious cause, however

worthy, of historic preservation.

The amici curiae urge this Court to recognize the harsh

economic realities that make Petitioner’s case ripe for adjudica-

tion, to recognize the illusory, discriminatory and unconstitu-

tional nature of the proffered ‘administrative remedy,” to

recognize the fundamental importance of the Constitutional

issues to a free society and to grant the petition for a writ of

certiorari to the New York Court of Appeals.

REASONS FOR GRANTING THE WRIT

The amici curiae respectfully submit that there 1s persuasive

reason for granting Petitioner’s application for a wnt of

certiorari.

I. The matter is ripe for adjudication.

That the matter became ripe for adjudication at the moment

in which Petitioner’s house of worship was designated as a

landmark is amply shown by the Petition herein and by the

dissenting opinion below. It is, moreover, interesting to note

that the majority opinion below nowhere denies any of the

following facts:

A. That, from the moment of the landmark designation,

Petitioner acquired and, at heavy additional cost, has been

fulfilling the resultant new obligation to preserve the external

historic appearance of its unwanted and religiously detri-

mental structure.

B. That, from the moment of the landmark designation,

funds contributed and to be contributed for religious purposes

by law must be, and have been, continuously diverted to

serve the cause of historic preservation, contrary to the

spending priorities established by the religious organization

owning those funds.

3

C. That, from the moment of the landmark designation,

criminal penalties have been in force to compel the perpetual,

first-priority, allocation of the present and future resources of

the religious organization (other than its landmarked struc-

ture), to the extent and in the manner deemed advisable by

the government, to insure the perpetual preservation of the

original appearance of the exterior of that structure.

D. That, from the moment of, and solely because of, the

landmark designation, Petitioner has been unable to develop

its real property in accordance with an “‘as-of-right” develop-

ment plan available to all similarly situated non-landmarked

owners, and that the resultant prevention of any income

from its real property has constituted and continues to

constitute a severe and ever-increasing daily economic loss to

Petitioner, threatening its very existence as a religious (as

distinct from a preservationist) community.

E. That Petitioner has not yet been able to present to a

court the question whether the facts set forth above constitute

governmental interference with the free exercise of religion

because the case was disposed of summarily.

There is nothing more that can “ripen” with respect to the

crushing impact of the landmark designation upon the Peti-

tioner. Lutheran Church in America v. City of New York, 35

N.Y.2d 121, 316 N.E.2d 305 (1974); Abbott Laboratories v.

Gardner, 387 U.S. 136, 152 (1967); Davis, Administrative Law,

Vol. 4, §25.7 (3d Ed.).

Il. The “administrative remedy” proffered to Petitioner:

A. denies due process,

B. necessixates an unconstitutional entanglement

by government with the internal religious affairs

of Petitioner,

C. is illusory,

D. discriminates on its face against charitable (reli-

gious) owners.

A. Lack of Due Process

Petitioner ought not be forced to go through an ‘‘administra-

tive remedy” procedure that would violate the Constitutional

guarantee of due process of law. Such is the case here, because the

4

“administrative remedy” (the so-called “hardship relief” provi-

sions of the New York City landmarks law) has the following

characteristics:

1. It forces the religious owners to appeal before the same

non-neutral (preservationist) Commission that had land-

marked the building.

2. It does not allow any consideration of the issue whether

the landmarking constituted governmental interference with

the free exercise of religion or other asserted Constitutional

infirmities.

3. It imposes the burden on the charitable (religious)

owner to prove a specified type of economic “hardship”

caused by the landmarking even though the owner had not

been permitted, at the original designation hearing, to show

economic, or other interference by the government with its

charitable operations. At the initial designation hearing, the

owner would not have had that burden of proof.

The situation described above violates Constitutional due

process requirements. Goss v. Lopez, 419 U.S. 565, 580 (1975);

Stanley v. Illinois, 405 U.S. 645, 656 (1972).

B. Governmental Entanglement with Religion

To force a landmarked religious owner to now go through

the “hardship relief” remedy would necessitate an unconstitu-

tional entanglement by government in the owner’s religious

affairs. To determine “hardship” under the provisions of the

law (which can only be hypothetical speculations in the case of

charitable (religious) owners), the government would be obliged

to compel the owner to disclose the following information in

order to re-order the owner’s spending and mission priorities so

as to give absolute, first priority to the preservation of the

historical appearance of the landmarked structure:

1. The amount of the religious owner’s current income

and reserve funds and other assets, including any non-

landmarked structures.

2. The adequacy of the religious owner’s fund-raising

methods and spending policies, including the per-

centagés of funds allocated to staff salaries, worship

5

and liturgy, religious ministry, educational ministry,

, humanitarian services, world mission support and build-

ing maintenance and repair.

Having extracted this data, the government forces, by threat

of criminal sanction, the religious congregation to alter its

spending priorities—for example, to reduce or eliminate staff,

to sell or rent any of its non-landmarked structures, to curtail or

eliminate some or all of its worship and other programs to the

extent that the government feels such actions necessary or

desirable to insure the preservation of the historical appearance

of the landmarked structure. For example, if, in the govern-

ment’s opinion, facade cleaning were inadequate, the religious

owner’s failure to engage in (adequate) fundraising could be

evidence of criminal intent to disobey the law.

These considerations apply with equal violence whether a

religious organization needed to sell its structure for demolition,

either to re-build or to finance its re-location, or whether it

determined that its charitable programs needed funding more

than the exterior appearance of its structure.

This fact-gathering, analyzing and re-prioratizing with re-

spect to an organization’s religious policies, programs and

resources constitutes an extreme example of prohibited govern-

mental entanglement in religious affairs. It is actually a govern-

ment take-over of the religious policy-making function of a con-

gregation. Lemon v. Kurtzman, 403 U.S. 602, 621 (1971); Walz

v. Tax Commission, 397 U.S. 664, 674 (1970).

C. Illusory nature of the “hardship relief remedy”

No knowledgeable builder will contract to purchase a land-

marked commercial structure to alter or demolish it (except

perhaps at a distress price) because he could not afford to abide

the delays, costs and uncertainties of the whimsical and illusory

“hardship relief,” or de-landmarking provision of the City

landmarks law. But for a religious or other charitable owner,

these procedures are even more illusory—they are structured so

that religious owners can never furnish the proof of hardship

required by the law and thus can never be de-landmarked

except perhaps at the whim of a preservationist Commission.

6

A commercial owner can have its building de-landmarked if,

among other things, it proves to the satisfaction of the Commis-

sion that the building cannot annually earn at least 6% of its

assessed value. (The 6% standard is itself illusory. New York

City assesses at about 50% of true market value; thus the 6%

standard equals 3% of true market value. The City’s profes-

sional realtors posit a 10%-12% return as necessary for economic

viability.) Furthermore, the religious or other tax-exempt owner,

in order to have its property de-landmarked, must prove to the

satisfaction of the Commission that the landmarked building

could not possibly earn each year 6% of its assessed value if the

building were not tax-exempt. Any data on that point would,

of necessity, constitute only speculation, never proof, especially

as houses of worship have no record of gross or net income

production, having been designed and used for worship, not for

commerce. The Commission could always refuse to de-landmark

a religious building for the “lawful” reason that there was

no “proof” of how much income the building could or could

not generate if it were not exempt from real property taxation.

If the Commission did decide for some reason to de-landmark

the building, it would have violated the “proof” requirements

of its own statute.

If the Commission did violate its own statute and make a

preliminary determination that “hardship” had been proved by

a religious owner, then it could further delay a proposed sale

while it tried to find another buyer who would purchase the

building “‘on reasonably equivalent terms and conditions” but

who would not alter or demolish the building. What builder

would even sign a purchase-contract subject to the condition

that he must wait for a year or more while the City tries to find

someone else to oust him from his desired purchase?

If the Commission failed to find such a substitute purchaser,

it can again further delay the contract sale by recommending

that the City acquire, by forced condemnation, “a specified

appropriate protective interest’ in the building, commonly

known as a “facade easement.”’ Thus the City, for a few dollars,

7

for example, can purchase an easement covering a tiny portion

of one wall of the building and thus effectively prevent that

wall from being demolished and so effectively prevent the site

from being re-used for a new building. Faced with such an

outcome, what builder would ever sign a contract that would

inveigle him into such a trap? He would simply elect to put his

time and money into buying some other non-landmarked site.

Thus the owner of the church or synagogue is deprived of its

market value and has no choice but to forever preserve its

unusable building as a museum of architecture.

D. Statutory Discrimination on face against charitable (reli-

gious) owners.

The so-called “hardship” relief provisions of the New York

City landmarks law contain a detailed scheme of discrimination

against religious and other charitable (tax-exempt) owners, and

in favor of commercial and private owners. Thus, the law

methodically discriminates in favor of owners who put net sales

or rental proceeds in their own pockets and discriminates

against owners who re-cycle such proceeds to aid recognized

charitable purposes. References below are to the landmarking

provisions of the New York City Administrative Code.

(1) Discrimination in the Requirements

for Proving “Hardship”

If the Landmarks Preservation Commission makes a pre-

liminary determination that a proposed alteration or demoli-

tion would impair the “special character” of a landmarked

building, the owner may request that the building nonetheless

be de-landmarked on the ground that the landmarking is

creating a “hardship.” The so-called “hardship” relief provi-

sions of the law discriminate heavily in favor of commercial

owners and against religious and other charitable owners, as

the following statutory provisions amply demonstrate:

(a) A commercial owner can apply for “hardship”’ relief (i)

if it seeks to demolish its landmarked building in order to

construct a new building on the site §107-8.0-b.(1)(a) or (11)

8

if it has contracted to sell its building or (ii1) if it has leased

its building for at least 20 years. But if a religious or other

charitable owner desires the first of these three options, it is

not eligible to apply for any type of hardship relief, and this

is precisely the option Petitioner desires. The religious owner

can apply for hardship relief only if it has contracted to sell

or lease for 20 years. §207-8.0-a.(2)(a).

(b) The commercial owner can also apply for hardship

relief for the purpose of altering or demolishing its building

in order to terminate its operation on the site. §207-8.0-

a.(1)(b)(1)(b). But if a charitable owner desires to do that, it is

not eligible for any hardship relief. §207-8.0-a.(2)(d). Thus if

communicants of a church or synagogue move to other

neighborhoods, the congregation cannot re-locate. It is forever

bound to the soil of its orginal site, obliged to use its

resources to preserve in perpetuity its useless building for the

sole benefit of those who think buildings are more important

than worship and ministry—and who use religious resources

to finance that perverse value system.

(c) A commercial owner can obtain “hardship” relief

whether or not his landmarked building is still suitable for

the business purposes for which the owner had been using it.

A religious owner, however, is denied hardship relief if its

building is still suitable for the owner’s current purposes or

if it is still suitable for the original purposes of the religious

owner if that owner is still engaged in those purposes. §207-

8.0-a.(2)(c). Thus, if a commercial owner has an uneconomical

factory building he can get hardship relief even though the

building is still suitable for factory use, but if a congregation

has an uneconomical church building or synagogue building

it cannot get hardship relief because its building is still

theoretically suitable for worship.

(d) A commercial owner may apply for “hardship” relief

on the grounds (among others) that he “seeks in good faith”’

to alter or re-construct the building if the Landmarks

Preservation Commission should decide to de-landmark it.

§207-8.0-a.(1)(b)(2). If a religious or other tax-exempt owner

makes such an application, it must be on the grounds that it

“seeks and intends in good faith’ to alter or re-construct the

el

9

building if the Landmarks Preservation Commission should

decide to de-landmark it. §207-8.0-a.(2)(d)(2). The underlined

words indicate a harsher standard arbitrarily imposed on

religious or other charitable owners.

(e) This same harsher standard is arbitrarily imposed on

religious or other charitable owners who are seeking to

demolish their landmarked buildings. Compare §207-8.0-

a.(1)(b)(1) with §207-8.0-a.(2)(d)(1).

(f) A commercial owner, to show hardship, must prove,

among other things, that its building cannot earn 6% of its

assessed value per year. §207-8.0-a.(1)(a); §207-1.0-v. A religious

owner in such case must prove that its house of worship

could not earn 6% of its assessed value per year if it were not

tax-exempt. §207-8.0-a.(2)(b); §207-1.0-v. This discriminates

against religious owners, not only because economic proof

can never be given for a non-possible hypothetical situation,

but because the law assumes that all buildings are designed

to produce income and that commercially useless buildings,

designed for worship, while having “special character’’ for

landmarking purposes, have no characteristic to permit

de-landmarking.

(2) Discrimination with Respect

to the “Alternative Plan”

If the Landmarks Preservation Commission determines that

an owner has proved “hardship,” it then begins the process of

coming up with an “alternative plan” to try to find another

builder who would develop the site but without altering or

demolishing the landmarked building. The procedural require-

ments are arbitrarily made far more onerous for religious or

other charitable owners than for commercial owners, as shown

by the following statutory provisions:

(a) The Landmarks Preservation Commission, in devising

its alternative plan, must consult with the commercial owner

§207-8.0-b. In the same situation, however, there is no

provision for consultation with a religious or other charitable

owner. §207-8.0-i.(1). Thus the religious or charitable owner,

but not the commercial owner, is prevented from contnbuting

any “input” toward the formulation of the alternative plan

and is kept “in the dark” about the fate of its own resources.

10

(b) The Commission’s alternative plan may provide for

full or partial tax tax abatement to alleviate economic

hardship on a commercial owner. §207-8.0-c. Thus the law,

while recognizing that landmarking imposes a special burden,

provides no commensurate relief for tax-exempt owners. It

has been suggested that this constitutes a dissipation of their

constitutionally guaranteed tax-exemption.

(c) If a commercial owner does not like the Commission’s

alternative plan, he can reject it without giving any reason.

§207-8.0-£.(2). A religious or other charitable owner, however,

must accept the alternative plan, like it or not. §207-8.0-1.(2).

Thus the religious, but not a commercial, owner is forced to

contract to sell or lease for 20 years with some otherwise

unknown substitute purchaser or tenant who may be finanaaally

unstable or otherwise unsuitable. The law gives the religious

owner no protection against this.

(d) For a commercial owner, the Commission is allowed only

60 days to formulate its alternative plan. §207-8.0-d. For a

religious or other charitable owner, it is allowed 180 days to

formulate its alternative plan. §207-8.0-1.

(e) The City landmarks law forces a religious or other

charitable owner to accept an alternative plan that is “reason-

ably equivalent” to the terms and conditions of the owner’s

original contract for sale or lease. §207-8.0-1.(1). As to com-

mercial owners, however, the Landmarks Preservation Com-

mission may not make any modification in their original

contracts for sale, lease, self-development plans or otherwise.

Thus, the bargain originally made by a religious owner, but

not by a commercial owner, may be whittled away by the

Landmarks Preservation Commission.

(f) For a commercial owner the Commission’s alternative

plan may permit certain “alterations, construction or recon-

struction” not contained in the owner’s original agreements.

§207-8.0-c. No such leniency or flexibility is allowed religious

or other charitable owners.

(g) Although a religious owner, unlike a commercial owner,

has no right to reject a “reasons")ly equivalent’’ alternative

1]

plan submitted by the Commission, the substitute purchaser

or 20-year tenant who was discovered by the Commission is

absolutely free, with total impunity, to repudiate that alterna-

tive plan even though it had previously agreed with the

Commission to accept the plan. §207-<.0-i.(4)(a). Thus the

fate of the congregation and its building is transferred to the

hands of some strange purchaser or tenant with whom the

religious owner never had any dealings and who, at the end

of a tortuous de-landmarking proceeding, can reject the

alternative plan and throw the religious or other charitable

owner back to “square one.” No such bizarre contingencies

are placed on commercial owners.

(3) Discrimination After De-Land-

marking Has Been Granted.

If a commercial owner has proven commercial “‘hardship”’ to

the Commission’s satisfaction and has rejected any alternative

plan proposed by the Commission, and if the City has not

condemned a facade easement, and when all waiting periods have

expired, the Commission is required to issue a notice permitting

the owner to proceed with its long-ago proposed alteration or

demolition. This notice to proceed is unconditional. §207-8.0-

g.(2). But if a religious or other charitable owner has “‘proven”’

hypothetical commercial “hardship” to the satisfaction of the

Commission and if any new purchaser or tenant discovered by the

Commission has rejected the Commission’s alternative plan (the

religious owner cannot reject the plan) and if the City has not

condemned a facade easement and if the more extensive waiting

periods applicable to religious and other charitable owners have

all expired, the Commissioner is likewise required to issue a

notice permitting the religious or charitable owner to proceed

with its long-ago proposed alteration or demolition, but the

notice to proceed is subject to the following conditions, none of

which apply to commercial owners:

(a) The alteration or demolition work must be performed by

the religious owner’s original contract purchaser or 20-year

tenant or the bona fide assignees of such purchaser or tenant

(other than the religious or charitable owner itself). §207-8.0-

i.(5)(a). If the original contract purchaser or 20-year tenant has

gone bankrupt from waiting out this prolonged scenario or has

12

wisely decided to put its time and money into another non-

landmarked location, the efforts of the religious or charitable

owner to get de-landmarked are nullified and he is back to

“square one ” free to start another “hardship” relief applica-

tion all over again. Thus the fate of the religious owner’s

building is taken from it and put in the hands of disinterested

or perhaps, by this stage, hostile third parties. A commercial

owner has no such burden.

(b) The religious owner’s original contract purchaser or 20-

year tenant must now, pursuant to §207-8.0.1.(5)(a), perform the

demolition or alteration work in compliance with §207-8.0-

a.(2). This latter Section provides for the furnishing of

hypothetical “‘proof” to the Commission’s satisfaction of the

‘inability of the religious structure to earn a specified low

commercial return, and for the furnishing of proof that the

structure is not suitable for carrying out the owner’s present

and original charitable purposes, and it requires the “‘immedi-

ate”’ (sic!) initiation of demolition or alteration as originally

proposed years before. If the contract purchaser or tenant does

not do the work immediately and does not furnish the above-

mentioned “proofs” of the current financial and corporate

status of the religious owner, the de-landmarking is forfeited

and the owner is back to “square one.” The religious owner,

unlike the commercial owner, is not allowed to do this work on

its building; the congregation can only hope that these

strangers will not abort the de-landmarking. Of course, if the

economic climate has by then changed, these strangers may

desire to abort the de-landmarking, and the law provides the

religious or other charitable owner with absolutely no protec-

tion against this.

(c) For religious or other charitable owners, the now-

permitted alteration or demolition must be undertaken with

“reasonable promptness”’ after the issuance of the notice to

proceed. §207-8.0-1.(5)(b). No time requirement of any sort is

imposed on commercial owners in this situation.

nti

13

(4) Discrimination as to the Bene-

ficiaries of De-Landmarking

If a commercial owner proves “hardship” and is de-land-

marked, it directly receives all the benefits of the de-landmarking

whether as owner of a now de-landmarked unencumbered

building or as the beneficiary of a sale or a 20-year lease with either

its original purchaser or tenant or, at its option, the new

purchaser or tenant discovered by the Commission. A religious or

other charitable owner, however, can never again own its de-

landmarked building unencumbered because it was not even

eligible for hardship relief if it desired to develop and continue to

own its land or building. In the case of a contract of sale or a

20-year lease, the religious or other charitable owner has

nothing to say about whether it will be dealing with an

originally intended purchaser or tenant, or one later discovered

by the Commission. And in the latter case, the law makes it

painfully clear that the religious or other charitable owner is to

have no benefit by providing that the charitable owner must

enter into. an agreement of purchase or lease with the new

purchaser or lessee discovered by the Commission, §207-8.0-

i.(2), and that the “provisions of this section (prohibiting

issuance of demolition or alteration permits unless the law’s

provisions concerning proof of ‘hardship,’ the alternative plan

and the City’s purchase of a facade easement have all been

complied with or have time-expired) shall not, after the con-

summation of such agreement, apply to such purchaser or

tenant (discovered by the Commission) or to the heirs, successors

or assigns of such purchaser or tenant.’’ §207-8.0-i.(3). So it is

clear that the law takes elaborate steps to insure that if a

religious or other charitable owner successfully completes a

hardship relief procedure, the benefits of its efforts will be

conferred on a purchaser or tenant, preferably one discovered

and imposed on that owner by the Commission. A commercial

owner is not subject to this fatal requirement.

It is clear from the foregoing that the City landmarks law

contains a studied pattern of blatant discrimination against

religious and charitable owners, as opposed to commercial

owners, to make it impossible for them to ever find a builder

who would be insane enough to contract to buy their land-

marked properties.

14

Ill. The New York City landmarks law, and the

scenario whereby a building is designated as a land-

mark, utterly fail to meet the minimal Constitutional

standards guaranteeing:

A. freedom from governmental interference with

the free exercise of religion;

B. due process of law;

C. just compensation for a governmental taking

of property; and

D. equal protection of laws.

A. The unwanted designation of Petitioner’s house of worship

or any house of worship as a landmark results in governmental

interference with the free exercise of religion.

The amici curiae, with all the religious communities «f our

nation, have erected and maintained over the centuries at their

own cost, more low-rise, distinctive structures, by far, than any

other societal group. Although any passerby is free to enjoy

these churches, synagogues and temples, they were built, not

for the passerby, but rather to promote the worship of God, to

nourish the spiritual life of men and women and to help them

better serve their fellow man. The amici curiae and the entire

religious community of our nation are now profoundly dis-

tressed to see the government inverting these values by making

these structures more important than the God and the people

the structures were erected to serve. The religious communities

see the government deciding the budgetary priorities of congre-

gations, forcing their funds to be used, into bankruptcy if

necessary, to preserve outmoded and useless structures that now

impede the religious mission they were erected to promote.

They see government “‘fossilizing’” their structures, thereby

preventing alterations needed to carry on religious worship and

ministry. They see the perpetual encumbrancing of their lands

with “white-elephant” structures thereby destroying the fair re-

sale value of the land so that they can never finance the

construction of a new structure to serve people in a new

location. They see that, in being thus forever “bound to the

soil,”’ they will be unable to continue their centuries-old tradi-

tion of incidentally contributing to our architectural heritage

by erecting new buildings in new styles of architecture. They

15

see government “establishing”’ historic preservation as a cause

and value automatically higher than that of religious, educa-

tional and humanitarian programs offered to the public by the

religious communities and the commandeering of religious

resources to finance that value-system. They see preservationists

conspiring with “neighbors” who abuse the landmarks laws to

preserve their apartment views over low-rise religious structures,

thereby imposing illegal spot-zoning on worshipping com-

munities.

The attempted extermination in this case of Petitioner’s

religious life is only one example. Every fair-minded citizen,

whether religious, non-religious or anti-religious, would recoil,

as would the framers of our Constitution, at such governmental

strangling of religious and related charitable activity.

The problem is nationwide—Roston, San Francisco, Chicago,

Buffalo, New York City, to name some places where it has

publicly surfaced. In New York State there are about 110 local

landmark ordinances, most of which have no hardship relief

provisions and all but one or two of which suffer from the same

Constitutional defects as the New York City ordinance.

Our nation will rise or fall. not on the quality of our buildings

but on the quality of our peoples who in disproportionately large

numbers look to the religious communities of America for the

spiritual, emotional, humanitarian and material support that the

government cannot, and often should not, provide. To permit

government to stifle these programs for the benefit of an aesthete

elite would be to promote that decadence which some doom-

sayers claim is already overtaking us.

B. The designation of Petitioner’s house of worship as a

landmark was effected without due process of law.

The designation of a structure as a landmark is the result of a

scenario (a term not lightly chosen) conducted by the New York

City Landmarks Preservation Commission that falls far short of

Constitutional “due process’’ requirements. The scenario has the

following characteristics:

1. If a structure is 30 years old, the only standard needed to

make it eligible for designation as a landmark is that it have

“special character,” an undefined term. No historical or

architectural distinction is required. There is no building that

16

does not have at least some such “special character.” Such a

“standard” is unconstitutionally vague. Secretary of State of

Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984);

Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967).

2. The Commission cannot, by law, take into account the

impact, economic or otherwise, that the landmark designation

would have on the ability of the religious owner to continue to

carry out its religious worship, mission and ministry, or

whether it would result in any other Constitutional violation.

3. The Commission schedules a structure for a public

hearing on the issue of whether or not the structure should be

designated as a landmark by accepting the recommendation

and report of its own internal staff that the structure should be

designated as a landmark—thereby holding a “public hearing”’

to determine the very issue it has already determined.

4. The “testimony” at the public hearing is not under oath.

5. The “‘testimony” on the only issue allowed by law to be

considered, namely whether the structure has at least some

“special character,” is given by witnesses who have no expertise

or who are not required to prove their expertise in the field of

the special character of structures.

6. Such testimony is accepted from anyone who asks to speak

at the “public hearing,’”’ whether or not he or she has any

legally cognizable interest in the matter.

7. The (complete) file of the Commission relating to the

affected structure may or may not, at whim, be made available

to the (religious) owner prior to or after the “public hearing.”

8. Post-hearing documentary ‘“‘evidence’’ may at any time be

placed by anyone in the official file of the Commission, prior to

its decision. Copies of such “evidence” are not furnished or

required to be furnished to the (religious) owner. Since the

Commission does not disclose to the owner when its file on a

given structure is to be deemed “‘closed”’ in preparation for the

rendering of the decision, the owner never knows what “new

evidence”’ may have been placed in the file and thus never has

the opportunity to rebut such “new evidence.”

9. The Commission, as a matter of announced policy,

arranges with the city buildings department to deny alteration

ete

; vail

17

or demolition permits for (religious) structures prior to its

decision on whether to designate the structure as a landmark,

thus “‘extra-legally” treating unlandrarked structures as if

they were landmarked.

10. The Commission can and does defer its decisions in-

definitely so that the (religious) owner’s position is frozen and

it can neither go forward with a judicial appeal nor proceed

with its desired modification or other disposit‘on of its

structure.

Petitioner has not yet been able to present to a court the

question whether the landmark designation scenario described

above meets minimal Constitutional standards of due process of

law because the case was disposed of summarily. Goss v. Lopez,

419 U.S. 656, 580 (1975); Stanley v. Illinois, 405 U.S. 645, 656

(1972).

C. The designation of Petitioner’s house of worship as a

landmark constituted an unconstitutional taking of property

without just compensation.

It is sometimes said that the government is not constitutionally

required to compensate an owner for loss resulting from the

designation of his structure as a landmark because such a

designation is not a “taking”’ by exercise of the power of eminent

domain but rather is the exercise of the “police power” whereby

every owner is (rightly) required to maintain and operate his

structure so as not to endanger the safety, health or morals of the

public. The fundamental distinction between an eminent domain

“taking” and an exercise of the police power set forth by Professor

Freund in his classic treatise, The Police Power at §511, pp.

546-547, is as follows:

“It may be said that the state takes property by eminent

domain because it is useful to the public, and under the

police power because it is harmful . . . . From this results the

differences between the power of eminent domain and the

police power, that the former recognizes a right to compensa-

tion, while the latter on principle does not.”

The New York City landmarks law provides for no compensa-

tion for value loss resulting from the imposition of a landmark

designation. Yet it cannot seriously be said that the construction

18

and maintenance over the decades of a (religious) building of

“special character’”” has been harmful to the public. On the

contrary, the Landmarks law does not seek to have the landmarked

structure razed as dangerous to public safety, health or morals, but

rather seeks to force the (religious) owner to preserve it in

perpetuity for the benefit of that aesthetically sensitive portion of

the public that is able to discern and enjoy its “special character.”’

This injustice is compounded in landmarking situations.

Normally, when the government takes over a building, whether

or not for just compensation, it also takes over the cost of

maintaining it. As a result of landmarking, however, the religious

owner is forever burdened with the cost of maintaining its

religiously detrimental structure for the delectation of those

passersby who take pleasure in architectural forms.

There is no overriding or compelling state need to landmark

religious structures even if the landmarking standards and

procedures met minimal Constitutional standards, for the fol-

lowing reasons:

1. It is the centuries-old tradition of our religious communi-

ties to erect and maintain low-rise, distinctive houses of

worship. This ancient tradition will continue so long as

religious congregations have a viable religious life. Every

citizen is free to enjoy those buildings whether or not landmark

designations are on file. In fact, the buildings existed long

before the landmarks law.

2. In those instances when a structure impedes the religious

purposes it was erected to serve, the state’s overriding and

compelling interest is in preserving religious freedom and the

religious, educational and humanitarian ministries sponsored

by religious organizations—not in preserving every last distinc-

tive building.

3. By fossilizing existing buildings, the landmarks law

prevents the release of funds that would be used, where a

congregation seeks to relocate, to construct a new house of

worship in contemporary architectural style. The law thus

cuts off our nation’s primary source of future distinctive

buildings.

19

It has been said that this Court has decided that there never

need be compensation in landmarking cases, citing Penn

Central Trans. Co. v. City of New York, 42 N.Y.2d 324, aff'd

438 U.S. 194, reh. den. 439 U.S. 883 (1978). In fact, however, it

was Clear that the landmarked owner (Penn Central) received

just compensation for the landmarking in the form of expanded

transferability of its development (air) rights that increased the

value of these rights by many millions, a benefit available only

because the structure had been landmarked.

Petitioner has not yet been able to present to a court the

question whether the landmarking of its church structure con-

stituted an uneonstitutional “taking” without just, or any,

compensation, because the case was disposed of summarily.

Murdock v. Pennsylvania, 319 U.S. 105 (1943); Matter of West-

chester Reform Temple v. Brown, 22 N.Y.2d 488 (1968).

D. The New York City landmarks law deprives Petitioner

and the public of equal protection of law.

Under the New York City landmarks law, any item of real or

personal property over 30 years old (except interiors of houses

of worship) may be “nominated” for designation as a landmark

either by the Landmarks Preservation Commission or anyone

else. However, the law does not require the Commission to

consider any particular structure, no matter how beautiful, for

designation, nor to act upon any request for designation. Thus,

the Commission may, at whim, refuse to consider one structure

of “special character” but accept for consideration another

structure of ‘“‘special character” (in which latter case designation

would be required). For example, when a major New York City

developer, Ronson, unearthed the historically important and

remarkably preserved hull of an 18th Century merchant ship

(the ‘““Ronson Ship’’), the Commission was notified but felt that

preservation of the hull wouid be too costly for the developer

and simply never scheduled the property for a hearing. Instead,

it held a parade at the site to signify the exceptional “special

character” of the property and then allowed its destruction so

the construction of Ronson’s high-rise building would not be

delayed. Had a designation hearing been scheduled, of course,

20

Ronson’s economics could not have been considered—only

whether the property had “‘special character.”

Again, the Commission decided that the convent of the Little

Sisters of the Assumption in Manhattan lacked any “special

character,” thereby permitting its destruction so that the owner

could realize the fair market value of the site. Even superficial

comparison would make it apparent that the Convent had far

more ‘‘special character” than Petitioner’s structure.

A law that permits, with impunity, unequal treatment

among owners of buildings of ‘special character’”’ denies the

public in general, and Petitioner in particular, the equal

protection of law guaranteed by the Constitution. Carey v.

Brown, 447 U.S. 455 (1980); Brown v. Board of Education, 347

U.S. 483 (1954).

Petitioner has not yet been able to present to a court the

question whether the New York City landmarks law violates

the equal protection guarantee of the Constitution because the

case was disposed of summarily.

CONCLUSION

For all the foregoing reasons, the amici curiae

respectfully urge that a writ of certiorari be issued to

the New York Court of Appeals in this case.

Respectfully submitted,

GEORGE J. MCCoRMACK

Counsel of Record for Amici Curiae

GEORGE A. PHILLIPS KEVIN M. KEARNEY

Cusack & STILES HuRLEyY, KEARNEY & LANE

Counsel for Roman Catholic Counsel for Roman Catholic

Archdiocese of New York, Diocese of Brooklyn,

Amicus Curiae Amicus Curiae

61 Broadway 32 Court Street

New York, New York 10006 Brooklyn, New York 11201

(212) 480-0400 (718) 852-5900