# Petition for Writ of Certiorari — Committee to Oppose the Sale of St. Bartholomew's Church, Inc. v. Rector > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3220%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 905 ## Text 90-9 00 No. 90- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1990 THE RECTOR, WARDENS AND MEMBERS OF THE VESTRY OF ST. BARTHOLOMEW’S CHURCH, Petitioner, —against— THE CITY OF NEW YORK AND THE LANDMARKS PRESERVATION COMMISSION OF THE CITY OF NEW YORK, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Douglas M. Parker Counsel Of Record Judah Gribetz Of Counsel: George A. Pierce MUDGE ROSE GUTHRIE ALEXANDER & FERDON 180 Maiden Lane New York, New York 10038 Kent Greenawalt New York, New York (212) 510-7000 Henry P. Monaghan New York, New York Counsel for Petitioner, Raymond L. Vandenberg The Rector, Wardens And Chancellor of Members Of The Vestry Of St. Bartholomew’s Church St. Bartholomew’s Church December 10, 1990 7 QUESTIONS PRESENTED Whether Employment Division v. Smith, 110 S.Ct. 1595 (1990), may be extended to uphold a landmarks preserva- tion law against a First Amendment challenge where: (a) the law is applied selectively and has a dispropor- tionate impact on religious organizations; (b) the law provides a system of individualized exemp- tions that excludes consideration of religious hard- ship; and (c) application of the law gives rise to a “hybrid” case that also involves the constitutional protection pro- vided by the takings clause of the Fifth Amendment? Whether the court of appeals applied an erronsous consti- tutional standard in holding that, although the application of a landmarks preservation law to petitioner “drastically restricted” petitioner’s ability to generate revenue to sup- port its religious mission, no infringement of petitioner’s First Amendment rights could be found absent proof that petitioner “cannot continue its religious practice in its existing facilities?” Whether the court of appeals erred in requiring petitioner to show, in order to establish a taking under the Fifth Amendment, that it “cannot continue its existing charita- ble and religious activities in its current facilities,” even though application of the landmarks preservation law had destroyed more than eighty percent of the total value of petitioner’s property? TABLE OF CONTENTS Page QUESTIONS PRESENTED i TABLE OF CONTENTS .. see TABLE OF AUTHORITIES iv OPINIONS BELOW casa JURISDICTION 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 2 STATEMENT OF THE CASE. eccsssccccssessssesnseesssenssessee 2 REASONS FOR GRANTING THE WRIT 6 Certiorari Should be Granted to Review the Denial of Petitioner’s First Amendment Claims ..... 10 Certiorari Should Be Granted To Review The Denial of Petitioner’s Claim Under the Fifth Amendment ................ ; 21 COP IUIIIITT ~ csnsisdivccnskdansnuctsinieebiccashectiaisigubibimiaabaansdcumisiancaaiias 30 APPENDIX The Rector, Wardens, And Members Of The Vestry Of St. Bartholomew's Church v. The City Of New York, et al., 914 F.2d De ee ee I ee ek ee eee Weeks l ee ee a ee ee ese tas te ee ee Ne See eee eee TABLE OF CONTENTS, Continued The Rector, Wardens, And Members Of The Vestry Of St. Bartholomew’s Church v. City of New York, et al., 728 F. Supp. 958 DN.Y, A990) a. 2 > United States Constitution, Amendments 1,5 and14 .... Ok ae Administrative Code Of The City Of New York §§ 25-301 to 25-321 TABLE OF AUTHORITIES CASES Page Agins v. Tiburon, 447 U.S. 255 (1980). 26 Bowen v. Roy, 476 U.S. 693 (1986)...... 12 Church of St. Paul and St. Andrew v. — Barwick, 67 N.Y .2d 510, 496 N.E.2d 183 cert. denied, 479 U.S. 985 (1986) 13 City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) ........ccssccscersscersees 15 Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987) 17 Employment Div., Department of Human Resources of Oregon v. Smith, ___ US. __, 110 S.Ct. 1595 (1990)........ 8, 10 First Covenant Church of Seattle v. City of Seattle, 114 Wash.2d 392, 787 Fy eS: eS -- F,-43,-16 First Unitarian Church v. Los Angeles, BF FB. FES CORI scsctcctcratinnivvcenssesions 17 Follett v. McCormick, 321 U.S. 573 CUD Bait cttincclalisionis sihesisbibiebpicindidtaniooe 11 3 Hernandez v. Commissioner, ___ USS. __-» 109 S.Ct. 2136 (1989) .......cccccccee. 10, 18 Hodel v. Irving, 481 U.S. 704 (1987)... 27 —jv— Jimmy Swaggart Ministries v. Board of Equalization, ___ U.S. ___, 110 S.Ct. 688 (1990) 10, 11, 18, 19, 21 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952). 17 Keystone Bituminous Coal Assn. v. De Benedictis, 480 U.S. 470 (1987)...... 25, 27 Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983) 11 Murdock v. Pennsylvania, 319 U.S. 105 CUBES) caiitictnisiaidcnstddcsilitiiccniistritioestienes 11 NLRB v. Catholic Bishop of Chicago, a Be GL | Seen 17 Nectow v. Cambridge, 277 US. 183 CIEE ciciieesinattib ainiaedinpiiedininhalhinteiiacincescenve 26 Nollan v. California Coastal Commission, BBD BUR BAS C1067) svi ccscsevesseensciscsevecss 26, 27 Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) 9, 21, 22, 23, 24 Pennsylvania Coal v. Mahon, 260 US. Fe Bini cracilietiiaapintbiiliwinndasesitininesese 25 Seawall Associates v. City of New York, 74 N.Y.2d 92, 542 N.E.2d 1059 (1989), cert. denied sub nom. Wilkerson v. Seawall Associates, ___ US. __, 110 S.Ct. 500 (1989).......... 23, 27 Secretary of State of Maryland v. J.H. Munson Co., 467 U.S. 947 (1984) ciety for Ethical Culture v. Spatt, 51 N.Y.2d 449, 415 N.E.2d 922, (1980) Society of Jesus of New Engiand et al. v. Boston Landmarks, Suffolk Co. of Mass., appeal docketed No. 5415 (Sup. Jud. Ct. Mass. June 22, 1990)....... Speiser v. Randall, 357 US. 513 (1958) Wisconsin v. Yoder, 406 U.S. 205 (1972) ; STATUTES, RULES AND REGULATIONS United States Constitution First FO RE LOE ET Le ee United States Constitution Fifth PIE evictnestcaniactersentnaccndsmtaicioe United States Constitution Fourteenth PIE Sovvecnsenctawiinteicn tanstanicanks ge Sa SE. RR he be TREES RE ae Nae ee ee aeeee 18 4, 9, 12 10, 14 passim passim N.Y.C. Administrative Code Ch. 3 § 25-301 et. seqg., (“Landmarks Law’’) OTHER AUTHORITY Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373 (1981)............... ‘Marcus, The Grand Slam Grand Central Terminal Decision: A. Euclid for Landmarks, Favorable Notice for TDR And a Resolution of the Regulatory/ Taking Impasse, 7 Ecology Law Quarterly 731 (1979). .........cccsscescsscers N.Y. Times September 15, 1990, § B at i TSE ai Wildthnidnecicbintivnieoesiuneinstorenraeen passim 17 x -- ; 3S 5 So. Oe Pew eee ee eo ete oe ad ee TA Pes te ee ; a e z Pees Sime sti ee eee 3 ; + are ? S Sapet SEs Eke Vs E SeC OIE: PR =. sil IN THE SUPREME COURY OF THE UNITE” STATES OCTOBER TERM, 1990 No. 90 THE RECTOR, WARDENS AND MEMBERS OF THE VESTRY OF ST. BARTHOLOMEW’S CHURCH, Petitioner, Vv. THE CITY OF NEW YORK AND THE LANDMARKS PRESERVATION COMMISSION OF THE CITY OF NEW YORK, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Petitioner respectfully requests that a writ of certiorari be issued to review the decision and judgment of the United States Court of Appeals for the Second Circuit, in St. Bartholomew's Church v. City of New York, 2d Cir. No. 90-7101 (Sept. 12, 1990). OPINIONS BELOW The opinion of the court of appeals is reported at 914 F.2d 348 (2d Cir. 1990). The district court opinion is reported at 728 F. Supp. 958 (S.D.N.Y. 1989).' JURISDICTION The judgment of the court of appeals was entered on September 12, 1990. This Court has jurisdiction to review the judgment of the court of appeals by writ of certiorari pursuant to 28 U.S.C. §1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This action arises under the First, Fifth and Fourteenth Amendments to the Constitution and 42 U.S.C. § 1983 and involves the Landmarks Law of New York City, New York City Administrative Code §§ 25-301 to 25-321 (1996)(“Landmarks Law”). (61a — 99a). STATEMENT OF THE CASE This case concerns the burdens imposed by the Landmarks Law on churches and other religious organizations generally and, in particular, upon petitioner, The Rector, Wardens and Members of the Vestry of St. Bartholomew’s Church (“St. Bartholomew’s” or the “Church”). In this case, the application of the Landmarks Law has prevented petitioner from developing a portion of its property to support its religious mission. Specifically, petitioner seeks to 1. The opinion of the court of appeals is reprinted at pages la — 24a of the appendix to this brief. The district court opinion is reprinted at pages 25a — 57a of the appendix to this brief. The appendix in the court of appeals is cited as “(A. ___).” The appendix in the district court is cited by volume/page; for example, 10/3271 refers to volume 10, page 3271 of the district court appendix. alliis demolish the community house adjacent to its church building and erect a new building. The lower floors of the new building would provide space for various church activities. The upper floors would generate income that petitioner believes is essential to support its mission, to repair and rehabilitate the church building and, indeed, to assure its survival. The application of the Landmarks Law has destroyed ninety percent of the value of the community house site and eighty percent of the value of the entire property and has deprived the Church of the ability to use any of that value in support of its mission. In addition, the Church has been left with a facility that provides insufficient space and is in need of major repair and rehabilitation. 1. The Landmarks Law and Religious Organizations. The Landmarks Law permits the designation as a land- mark of any 30 year old building determined by the Landmarks Preservation Commission (“the Commission”) to have “a special character.” Landmarks Law § 25-302 n., (66a).’ As of 1986, approximately 600 buildings in New York City had been individually landmarked, and of that number 95 were churches or other religious buildings. (A. 188). Each of the churches whose property has been landmarked must, under criminal penalty, maintain the landmarked appearance of that property and cannot make any alteration or modification to the exterior without the permission of the Commission. Landmarks Law §§ 25-305, 25-317, (74a — 76a, 95a — 96a). If a church seeks to alter its property it must first apply for a “certificate of appropriateness” that will be granted or denied by the Commission on the basis of its aesthetic judgment. Landmarks Law §§ 25-307 a., 25-307 d., (77a, 79a). If a certificate of appropriateness is denied, the church 2. The Landmarks Law also autborizes the designation of historic districts but such designations are not at issue in this action. "a may then apply to the Commission for a “certificate of appropriateness on the ground of insufficient return.” 2. The Landmarks Law and St. Bartholomew’s. St. Bartholomew’s was organized as a Protestant Episcopal Church in 1835. The Church constructed buildings on its current site, at the corner of Park Avenue and 50th Street, in 1918. The buildings originally consisted of the church build- ing and a small parish house. In 1927, the parish house was demolished and ihe present community house was constructed. (10/3271-73). On March 16, 1967, the Commission issued a report designating the church building and the community house a landmark. (A. 596-97). Although the designation report of the Commission detailed the many beautiful architectural features of the church that formed the basis for designation, it did not ascribe any distinctive architectural features to the community house. In December, 1983, the Church applied for a certifi- cate of appropriateness to construct a 59 story building on the site of the community house. By letter dated June 21, 1984, the Commission criticized the design of the proposed building and denied the Church’s application. (A. 598-603). 3. To obtain such certificate, a church (or other tax exempt owner) must establish, inter alia, that the property, if it were not tax exempt, would be incapable of earning a reasonable return and that the property is no longer “adequate, suitable or appropriate” for its charitable purposes. Landmarks Law §§ 25-309 a.(1)(a), (80a). In addition to the statutory test, the New York Courts have developed as a “judicial test” an alternative standard for relief applicable to charitable institutions including churches: i.e., that a land- mark designation is permitted “only so long as it does not physically or finan- cially prevent, or seriously interfere with the carrying out of the charitable purpose.” Society for Ethical Culture v. Spatt, 51 N.Y.2d 449, 455, 415 N.E.2d 922, 925 (1980). —4- In December, 1984, the Church made a second application for a certificate of appropriateness. It was based upon a complete redesign of the proposed building to meet the aesthetic objections of the Commission to the first building.‘ Nevertheless, the Commission rejected the redesigned building. (A. 604-07). In September, 1985, the Church applied for relief on the ground of “insufficient return.” The Church presented evi- dence that the space in the community house is inadequate to accommodate the current needs of the Church’s programs, and that both the church building and the community house suffer from serious physical deterioration. (E.g., A. 506-29, 635-72). An expert witness for the Church estimated that the cost of the essential repair and rehabilitation work needed to permit both buildings to function safely and adequately would exceed $11 million. (A. 644-47). The Church also established that the major portion of the value of its property lay in its development value. When the Landmarks Law destroyed that value, it reduced the total value of the Church’s property by more than eighty percent. Specifically, a report and testimony of an appraisal firm placed the value of the entire landmark site, if not landmarked, at $175,000,000, and as landmarked at $35,000,000. The value of the community house site alone, if not landmarked, was found to be $125,000,000, and as landmarked, $15,000,000. (A. 608-09). On February 24-25, 1986, the Commission passed res- olutions denying the Church’s application. The resolutions were based, in principal part, upon estimates of repair and 4. The redesigned building reflected a twenty percent reduction in space avail- able for the community house and a fifty-two per cent reduction in the space to be leased as commercial offices. (A. 482-83). In addition, the materials and texture of the proposed building had been changed from reflective glass to limestone and brick in order to harmonize with the church building. (A. 456-78, 1118). we rehabilitation introduced at Executive Sessions of the Commission to which the Church had requested — and been denied — an opportunity to respond. (A. 407-48, 764-69). Such estimates totaled approximately $3 million. This action was commenced in April, 1986. The com- plaint challenged the constitutionality of the Landmarks Law as applied to St. Bartholomew’s and the facial validity of the law as applied to religious organizations generally. Federal claims were asserted under the First, Fifth and Fourteenth Amendments and 42 U.S.C. § 1983. The district court upheld the facial validity. of the Landmarks Law as applied to religious organizations generally. The court also rejected the Church’s claims that the application of that law to St. Bartholomew’s had violated its rights under the First and Fifth Amendments as incorporated by the Fourteenth Amendment. The latter claims were denied on the grounds that the Church had failed to prove that “it can no longer conduct its charitable activities or carry out its religious mission in its existing facilities.” (57a). The court of appeals affirmed. Without considering the impact of the law on religious organizations generally, it approved the standard applied by the district court with respect to St. Bartholomew’s and the finding that the Church had failed to meet that standard. REASONS FOR GRANTING THE WRIT “ [The court of appeals decision] is a total affirmation, really, of our powers,” said Laurie Beckelman, chair- woman of the city’s Landmarks Preservation Commission. She said the court was affirming “the absolute power” of the commission “to designate and regulate religious properties as landmarks.” The New York Times, Sec. B, p. 4, col. 2, September 13, 1990. * * * The power of landmark preservation commissions to appropriate religious property has become a painful reality to religious organizations throughout the country. As neighbor- hoods change, congregations, once—thriving but now diminished, are often left with buildings that are ill-suited to their needs and costly to maintain and repair. When those buildings have been landmarked, the capacity of a church to plot a course for sur- vival is seriously threatened. If the church seeks to modify such a building — to serve the changing needs of its congregation — it will quickly discover that its destiny rests in the hands of a secular agency whose priorities are altogether different and whose discretion is virtually unfettered. Against this background, the present case raises issues of broad significance in two areas of constitutional jurisprudence: the free exercise clause of the First Amendment and the takings clause of the Fifth Amendment. Although the free exercise clause and the takings clause implicate quite differ- ent values, the court of appeals rejected petitioner’s claims under each clause by application of the same simplistic formula — that no constitutional violation has occurred so long as peti- tioner has not been prevented from carrying on its existing activ- ities in its current facilities. That standard has no basis in the precedents of this Court and conflicts with decisions of the high- est courts of the states of Washington and New York. Free Exercise. In rejecting petitioner’s free exercise claims, the court of appeals ignored the effect of the Landmarks Law on religious organizations generally and looked only to the impact on petitioner. The court then proceeded to create a stan- dard that denies petitioner the ability to adapt its property to a use compelled by the religious convictions of its congregation. The decision of the court of appeals and the standard it applied were clearly in conflict with the recent decision of the Supreme Court of Washington in First Covenant Church vy. City of Seattle, 114 Wash.2d 392, 787 P.2d 1352 (1990) which had found the landmarking of a church to be a violation of the free exercise clause.’ The decision by the court of appeals herein did not dis- cuss, or even cite, First Covenant. Rather, the court relied prin- cipally on this Court’s decision in Employment Division v. Smith, __ U.S. ___, 110 S.Ct. 1595 (1990), which held that requiring compliance with a neutral and generally applicable criminal law did not infringe the free exercise clause. The most basic error of the court of appeals was to conclude that the Landmarks Law is a “generally applicable” law within the meaning of Smith. Moreover, the court failed to consider the two major exceptions to the applicability of Smith that were explicitly recognized in that case: (a) cases arising under laws that provide systems of individualized exemptions but exclude (as the Landmarks Law does) consideration of religious hard- ship; and (b) “hybrid” cases wherein a free exercise claim is joined with a claim of other constitutional rights, in this case petitioner’s rights as a property owner under the Fifth Amendment.’ In short, the decision below represents a broad and unwarranted expansion of Smith that this Court should correct. Takings. Petitioner’s takings claim presents an impor- tant question not previously addressed by this Court: the stan- daré to be applied in determining whether a regulation that affects the property of a charitable or religious institution con- stitutes a taking. We submit that, while the takings analysis may differ in some particulars, a charitable or religious property 5. The landmarking of a church was also invalidated on First Amendment grounds in Society of Jesus of New England et al. v. Boston Landmarks, Suffolk Co. of Mass., appeal docketed No. 5415 (Sup. Jud. Ct. Mass. June 22, 1990). 6. Subsequent to Smith, a motion for reconsideration was filed in First Covenant and was denied by the Supreme Court of Washington on September 12, 1990. owner is surely entitled to no less protection under the Fifth Amendment than a commercial owner. Such protection, how- ever, was plainly denied under the standard applied by the court of appeals. In denying petitioner’s claim under the takings clause, the court of appeals applied a redacted, and seriously distorted, version of the constitutional test adopted by the New York Court of Appeals for assessing the validity of the Landniarks Law as applied to charitable institutions. See Society for Ethical Culture v. Spatt, 51 N.Y.2d 449, 415 N.Ed.2d 922 (1980). In support of the standard it created, the court of appeals cited only one decision of this Court, Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) — which was decided twelve years ago by a divided court. Although the decision was heavily fact-dependent — and the facts were, in important respects, quite untypical — it has been frequently misunderstood as a broad charter for any and all landmarking.’ Thus, in the present case, the courts below viewed Penn Central as dispositive, with little heed to the strik- ing dissimilarity of its facts. The result was a decision that is, in principle, contrary to Penn Central or, at best, a major and unwarranted extension of that case. Such a result is particularly troublesome in light of subsequent decisions of this Court that suggest a limitation — and not an expansion —— of the reach of Penn Central. A decision that permits landmarking to destroy, with- out compensation, more than eighty percent of the value of a property will have a major impact. Indeed, if the decision is permitted to stand, it will be seen as a clear signal that few if any constraints to landmarking are posed by the takings clause. The decision of the court of appeals, therefore, will have serious implications, not only for religious organizations, but for all 7. See, e.g., Marcus, The Grand Slam Grand Central Terminal Decision: A. Euclid for Landmarks, Favorable Notice for TDR And a Resolution of the Regulatory/Taking Impasse, 7 Ecology Law Quarterly 731 (1979). Min. owners of landmarked buildings. Such a decision clearly merits a review by this Court. I. CERTIORARI SHOULD BE GRANTED TO REVIEW THE DENIAL OF PETITIONER’S FIRST AMENDMENT CLAIMS. A. The Court of Appeals Erred In Its Application Of Employment Division +. Smith. Prior to its recent decision in Employment Division v. Smith, this Court had repeatedly held that a regulation impos- ing a substantial burden on the free exercise of religion could not be justified merely because the regulation appeared to be “neutrel on its face.” Such a burden, the Court had indicated, could only be justified by the showing of a “compelling govern- mental interest.” Jimmy Swaggart Ministries v. Board of Equalization, __ U.S. ___, 110 S.Ct. 688 (1990); Hernandez v. Commissioner, __. U.S. ___, 109 S.Ct. 2136 (1989); Wisconsin v. Yoder, 406 U.S. 205 (1972). In Smith, however, the Court held that the compelling interest test was inapplicable to “an across-the-board criminal prohibition on a particular form of conduct.” ___ U.S. at __, 110 S.Ct. at 1603. The Landmarks Law, with its aesthetic concerns and wholly discretionary applications, is hardly analogous to “an across—the—board criminal prohibition” or the “socially harmful conduct” addressed in Smith. Accordingly, the holding of Smith does not govern the present case. Indeed, even if Smith is read more broadly, to apply to any law that is “neutral” and “generally applicable,” it is clear that the Landmarks Law is not such a regulation. The Landmarks Law appears on its face to be neutral, i.e., it makes no reference to religion or religious buildings except to provide an exemption for the interiors of places of worship. Landmarks Law § 25-303 a. (2), (70a). On the other hand, the provisions that authorize the landmarking of ~10- individual buildings are not “generally applicable” in any meaningful sense of the term. The essence of the New York law — and any landmarks law — is selectivity. For example, to be landmarked pursuant to the New York law, a building must be determined to have “a special character or special his- torical or aesthetic interest or value.” Landmarks Law § 25-302 n., (66a). By its nature, such landmarking will be applied to relatively few buildings. The lack of general applicability is further manifested by the fact that the law has been applied disproportionately to religious buildings. Of approximately 600 individually land- marked buildings in New York City in 1986, 95 were religious buildings. Moreover, the impact of the law falls even more dis- proportionately upon those denominations for whom the beauty of their church buildings has been an important way to express religious belief: one third of the landmarked religious buildings are Episcopal churches. (A. 165-70). The nature of the Landmarks Law is similar, in signifi- cant respects, to the flat licensing taxes invalidated in Murdock v. Pennsylvania, 319 U.S. 105 (1943) and Follett v. McCormick, 321 U.S. 573 (1944). Like the Landmarks Law, such taxes were “neutral”, i.e., they did not single out, or make any reference to, religious organizations. Nevertheless, they were found to place an unconstitutional burden on the free exer- cise of religion and this Court has emphasized the difference between such taxes and a “generally applicable sales tax.” See Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 587 n.9 (1983); Jimmy Swaggart Ministries v. Bd. of Equalization, __ U.S. at __, 110 S.Ct. at 694-695. In Swaggart and Minneapolis Star, the Court pointed out that the license taxes invalidated in Murdock and Follett had imposed a prior restraint on the exercise of a constitution- ally protected right. That observation is equally applicable to the Landmarks Law — which operates as a prior restraint on the exercise of religion by every church whose property has been landmarked. Compliance with the procedures of the Landmarks af. Law is exacted as a precondition to any alteration of the church’s own property — no matter how essential to the mission of the church. See, infra, pp. 15-16. In addition to the court of appeals’ failure to observe this Court’s limitation of the holding in Smith to laws of general applicability, it also failed to acknowledge this Court’s explicit recognition of two kinds of circumstances in which a compelling governmental interest was still required to justify burdens on free exercise rights. Although both of the circumstances identi- fied in Smith are conspicuously present in the instant case, the court of appeals failed to address either. First, Smith reaffirmed the principle that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ with- out compeiling reason,” __ U.S. at _, 110 S. Ct. at 1603, citing Bowen v. Roy, 476 U.S. 693, 708 (1986). In this case, it is clear that the Landmarks Law creates just such a “system of individual exemptions.” Such a system is found in the statutory provisions for relief on the ground of “insufficient return” and in the judicial test formulated by the New York courts. See, e.g., Society for Ethical Culture v. Spatt, supra. It is equally clear that neither the statutory nor the judicial provisions for relief encompass any consideration of religious hardship. Indeed, the New York Court of Appeals explicitly excluded consideration of any religious hardship on the mistaken assumption that a church’s use of its property to support its mission is “secular.” 51 N.Y.2d at 456. The Commission, for its part, applies the same exclusion. See, infra p. 20. Second, Smith pointed out that even the application of a “neutral, generally applicable law to religiously related action” had been barred in “hybrid” cases involving “other con- stitutional protections.” __ U.S. at __, 110 S.Ct. at 1601-02. Specifically, the Court referred to free exercise cases also involving freedom of expression or the right of parental supervision. So here, the application of the Landmarks Law to churches involves not only the free exercise of religion but the rights of those churches, as property owners, under the Fifth ~12- Amendment. Indeed, the latter rights, unlike the right of parental supervision, do not arise merely by inference but are enumerated in the text of the constitution. The erroneous application of Smith permitted the court of appeals to avoid the issue of whether any compelling state interest could be. found to justify the burden of the Landmarks Law. It is evident, however, that no such interest exists. Recognition of aesthetics as a permissible state goal, as in Penn Central, is plainly not the equivalent of recognizing it to be a compelling state interest.’ The absence of any compelling state interest is glar- ingly cbvious under the facts herein. The applications of St. Bartholomew’s before the Commission did not seek quthor- ity to demolish or modify in any way the only building on the site of any architectural distinction, i.e., the church building. Both plans submitted by the church preserved the church building, as well as a garden in front of the community house. 8. In First Covenant Church v. City of Seattie, supra, the Supreme Court of Washington carefully considered Penn Central and concluded: The appellants [in Penn Central] did not allege any violation of a fundamental right. Absent such a claim, the Court was abie to employ minimal scrutiny in its analysis of New York City’s Landmarks Preservation Law. Although the Court held that the landmarks law satisfied the limited inquiry of minimal scrutiny, it seems most likely the Court would not have reached the same result had it analyzed the law under strict scrutiny. We hold that the preservation of historical landmarks is not « com- pelling state interest. Balancing the right of free exercise with the aesthetic and community values associated with landmark preserva- tion, we find that the latter is clearly outweighed by the constitu- tional protection of free exercise of religion and the public benefits associated with the practice of religious worship within the community. See Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 525, 496 I¥.E.2d 183, (1986) (Meyer, J., dissenting), cert. denied, 479 U.S. 985 (1986). 787 P.2d at 1361. ty (A. 238-42, 245-49; A. 462-66, 470-77). In short, the government’s interest, if discernible at all in this case, could not justify a gross interference with the freedom of St. Bartholomew’s to make use of its own property in support of the religious work for which it was organized. B. The Court of Appeals Erred In Disregarding the Impact Of The Landmarks Law on Religious Organizations Generally and In The Standard It Applied To Petitioner. The court of appeals viewed petitioner’s First Amendment claims through a very narrow lens. The court declined to address at all the impact of the Landmarks Law on religious organizations generally. And, in the case of petitioner, the court found no burden upon the free exercise of religion so long as petitioner is able to raise sufficient funds to permit it to carry on its existing activities — at some undefined level — in its present facilities. That is a standard, we believe, that disre- gards basic values of the First Amendment. 1. The Burdens Of The Landmarks Law On Religious Organizations Generally. The Landmarks Law, on its face, imposes burdens on religious organizations that severely impact upon the free exer- cise of religion. As a threshhold proposition, it is vitally impor- tant for a church to be able to devote its sanctuary and ancillary buildings to the support of the church’s religious mission. And it is equally clear that the use of such buildings constitutes the exercise of religion, i.e., it is conduct “rooted in religious belief.” See Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). If, howevet, the church site is landmarked, the ability of the church and its members to use the buildings on the site in accordance with the dictates of their faith is severely constrained. If the church attempts to contest a proposed landmark designation, it wil! find that the applicable standard is exceedingly broad and exceedingly vague (e.g., “special aye character”). Landmarks caw § 25-302 n., (66a). In the courts below, respondents cited Penn Central to defend the vague and subjective standard of the Landmarks Law, but ignored the cru- cial point that Penn Central did not involve a First Amendment freedom.’ If a church is landmarked, the church, its clergy and members know that, under pain of criminal sanctions, their first priority must be not the funding of their programs in the prac- tice of their religion, but preserving the landmark appearance of their buildings. Landmarks Law § 25-317, (95a — 96a). The church also knows that it can do nothing with respect to the exterior of its buildings without the permission of the Commission. The church’s days of autonomy in the manage- ment of its affairs are over. As the Supreme Court of Washington pointed out in striking down the application of a similar ordinance to a church in Seattle: 9. Thus, while Justice Brennan, writing for the Court in Penn Central, was willing to accept the vagueness and subjectivity of the Landmarks Law in the context of a claim under the takings clause, he later made it clear that very different considerations apply where, as here, important First Amendment rights are directly implicated. City Council v. Taxpayers for Vincent, 466 U.S. 789, 821-22 (1984): The fundamental problem in this kind of case is that a purely acs- thetic state interest offered to justify a restriction on speech . . . creates difficulties for a reviewing court in fulfilling its obligation to ensure that government regulation does not trespass upon protections secured by the First Amendment. The source of those difficulties is the unavoidable subjectivity of aesthetic judgment — the fact that “beauty is in the eye of the beholder.” As a consequence of this subjectivity, laws defended on aesthetic grounds raise problems for judicial review that are not presented by laws defended on more objective grounds — such as national securi- ty, public health, or public safety. In practice, therefore, the inherent subjectivity of aesthetic judgments makes it all too easy for the gov- ernment to fashion its justification for a law in a manner that impairs the ability of a reviewing court meaningfully to make the required inquiries. Brennan, J. dissenting. /d. ais. The practical effect of the provisions is to require a reli- gious organization to seek secular approval of matters potentially affecting the Church’s practice of religion. First Covenant Church v. City of Seattle, supra, 787 P.2d at 1359. If a church seeks to alter its landmarked building, it must embark upon an administrative odyssey that is lengthy, expensive and lacking the most basic elements of procedural due process. First, the Landmarks Law requires the church to incur the expense of designing the proposed alteration without know- ing what might or might not be accepted by the Commission. The design is then presented to the Commission with an applica- tion for a certificate of appropriateness that, like the initial des- ignation, will be granted or denied solely on the basis of the aes- thetic sensibilities of the eleven Commissioners. Landmarks Law § 25-307, (77a, — 79a). After a denial of a certificate of appropriateness, the church may then make an application on ground of “insufficient return”. At this point, the church must submit to a broad and searching examination into its operations. See infra p. 20. Throughout that examination, the Landmarks Law fails to pro- vide anything resembling an orderly procedure for the resolution of factual issues or even the right to respond to adverse evidence.” The consequences of the foregoing are starkly apparent. To begin with. ~ church’s loss of autonomy in the management of its aff: is is, by itself, a matter of serious 10. The Landmarks Law requires a public hearing but explicitly provides that “the commission in determining any matter as to which such hearing is held, shall not be confined to consideration of the facts, views, testimony or evidence submitted at such hearing.” Landmarks Law § 25-313 b., (93a). In the present case, petitioner requested, but was denied, the opportunity to respond to testimony that provided the core of the Commission’s findings. See, supri pp. 5-6. A6- consequence. See Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 107-108 (1952) (legislation that regulates church administration, the operation of the churches, [and] the appoint- ment of clergy . . . prohibits the free exercise of religion); NLRB y. Catholic Bishop of Chicago, 440 U.S. 490 (1979) (National Eater Retations Bossd held not to have jurisdiction over church-operated schools)." Important as it is, however, loss of church autonomy is by no means the only impact of the Landmarks Law upon the free exercise rights of religious institutions. The intent and the effect of the law is to place upon a church the “burdens of proof and persuasion” that the church is entitled to devote its own property to the support of its religious mission. The imposition of such burdens on the exercise of First Amendment rights is ble. Cf. First Unitarian Church v. Los Angeles, 357 US. 545, 547 (1958); Speiser v. Randall, 357 U.S. 513, 529 (1958). Given the obscure standards and onerous procedures of the Landmarks Law, there are very few churches subject to the law that will have the fortitude and financial strength even to seek the relief that the law purports to provide. Thus, most churches will be required to forsake any steps to expand or maintain their religious missions that would involve a significant alteration of their facilities. The observation of Speiser, made in a different context, is nonetheless quite apt: 11. As one commentator has summed up the law, “Quite apart from whether a regulation requires a church or an individual believer to violate religious doc- trine or felt moral duty, churches have a constitutionally protected interest in managing their own institutions free of government interference.” Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1373 (1981). Professor Laycock’s article was cited by Justice Brennan concurring in Corporation of Presiding Bishop v. Amos, 483 US. 327 (1987), wherein the Court upheld the constitutionality of an exemp- tion for religious organizations from a federal statute prohibiting religious dis- crimination in employment. 483 U.S. at 341. Justice Brennan further pointed out that “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” 483 U.S. at 342. -17- The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct neces- sarily must steer far wider of the unlawful zone than if the State must bear these burdens. This is especially to be feared when the complexity of the proofs and the gen- erality of the standards applied, cf. Dennis v. United States, supra, provide but shifting sands on which the litigant must maintain his position. 357 U.S. at 526. In short, the vagueness and overbreadth of the standards for designation, coupled with the intrusive and cumbersome provi- sions for relief, inevitably create a chilling effect on the practice of religion by a landmarked church. Cf. Secretary of State of Maryland v. J.H. Munson Co., 467 U.S. 947, 956 (1984). 2. The Burden Of The Landmarks Law On St. Bartholomew’s And The Erroneous Standard Applied By The Court Of Appeals. The court of appeals acknowledged that ‘“‘the Landmarks Law has drastically restricted the Church’s ability to raise revenues to carry out its various charitable and ministe- rial programs.” (13a). Remarkably, however, the court found that fact to have no constitutional significance: Nevertheless, we understand Supreme Court decisions to indicate that neutral regulations that diminish the income of a religious organization do not implicate the free exercise clause. See Jimmy Swaggart Ministries v. Board of Equalization, ___ U.S. ___, 110 S.Ct. 688 (1990); Hernandez v. Commissioner, _ U.S. ___, 109 S.Ct. 2136 (1989). (Id.) That conclusion, we submit, clearly misapplies the holdings of © Hernandez and Swaggart. To begin with, both Hernandez and Swaggart involved “generally applicable” laws. For the reasons previously dis- cussed, that characterization cannot be applied to the Landmarks Law. Second, the magnitude of the financial ft burdens involved in Hernandez and Swaggart did not remotely approach that imposed by the Landmarks Law on St. Bartholomew’s. Both cases involved the relatively minimal impact of an incrementally larger tax burden. The Court in Swaggart, moreover, expressly recognized that a quite different question would be presented by a “more onerous tax rate” that “might effectively choke off an adherent’s religious practices.” _. US. at __, 110 S.Ct. at 688. The court of appeals apparently read Swaggart to mean that an economic burden is irrelevant unless the effect is to choke off religious practices entirely. So severe a standard is neither required nor justified by that case. Where, as here, a law is conceded to have the effect of “drastically restricting” the revenue available to support a church’s mission, that fact should not be ignored on the grounds that the church may nevertheless be able to devise a method of surviving at some reduced level. The court of appeals failed to recognize how directly the constraints of the Landmarks Law may coerce a church and prevent its congregation from acting in accord with their reli- gious beliefs. Specifically, the resources of the church may be — as they most surely have been in this case — diverted from a use commanded by the religious faith of its members and appro- priated to serve a secular purpose. In supporting the application of St. Bartholomew’s before the Commission in this case, the then Bishop of the New York Diocese, Paul Moore, expressed it simply and clearly. After reviewing the parable of Judgment Day from Matthew 25 he said: In this parable, as in the First Sermon, as in the Sermon on the Mount, as in the whole life and death upon the cross, Jesus Christ set compassion and justice at the very heart of our religion. Indeed, he said it is the basis on which we are ultimately judged. Would you deny us our right to practice our religion? Would you deny us the means to pick up as best we can the burden of the poor that the public sector has so shamelessly laid down? Would you prevent us from ~19- sheltering the homeless, feeding the hungry, caring for desperate children in a city which in these days has seemed to have lost its heart? Under our polity all the churches and institutions of our diocese which serve the poor are dependent on churches like St. Bartholomew’s. Denying a hardship petition today would be the denial of our right as Christians to carry out the very heart of our mission. (2/477—78). That plea, however, fell on deaf ears. The Commission, citing Ethical Culture, -uled that the Church’s desire to secure funds “to maintain its current ministry and to respond to the future demands of the City, while commendable and understandable, cannot be the basis for establishing a show- ing of hardship ....” (7/2459). The court of appeals was simi- larly unmoved. The standard it applied excluded from consider- ation all but the most extreme form of religious hardship, i.e., inability te continue. So broad a disregard of religious hardship, however, cannot be justified in the absence of some compelling state interest. And here, we repeat, there is none. Finally, the court of appeals brushed aside, in a foot- note, the entanglement between church and state spawned by the Landmarks Law: The only scrutiny of the Church occurred in the pro- ceedings for a certificate of appropriateness, :nd the matters scrutinized were exclusively financial and architectural. This degree of interaction does not rise to the level of unconstitutional entanglement. (14a). That depiction of the operation of the Landmarks Law totally misapprehends the reality of proceedings before the Commission. What the court of appeals failed to appreciate is that the purported scrutiny of matters “financial and -20- te P ee emg a i Bi Fer] architectural” leads inexorably into the details of virtually every facet of a church’s operations, priorities and motivations." Such issues and such proceedings bear no resemblance to ‘the routine administrative and recordkeeping obligations involved in Jimmy Swaggart Ministries. Indeed, they represent - a breadth and depth of entanglement that is unparalleled in any reported case. It is, we submit, unique and unacceptable. Il, CERTIORARI SHOULD BE GRANTED TO | REVIEW THE DENIAL OF PETITIONER’S CLAIM UNDER THE FIFTH AMENDMENT. The court of appeals also applied its free exercise stan- dard to petitioner’s claim under the takings clause of the Fifth Amendment. Specifically, the court rejected the takings claim because it believed that petitioner is able to conduct its existing charitable and religious activities in the present facilities. That standard, however, is inconsistent with the only authority of this Court cited by the court of appeals, Penn Central Transportation Company v. New York City, supra. It also con- flicts with subsequent decisions of this Court and with the con- stitutional test adopted by the New York Court of Appeals with respect to the landmarking of buildings owned by charitable institutions. 12. The record below abundantly illustrates that fact. For example, in the hearings before the Commission, the Church was called upon to address such issues as: the decision to close the church sanctuary to the public on weekdays, the size of the Rector’s apartment, the number and level of compensation of the clergy employed by the church, the manner (and propriety) of providing of food and shelter to the homeless, the managerial expertise of the Vestry, and how and for what purposes the Church’s fundraising capacity should be employed. (2/598, 604-606, 639-40; 3/1032-38; 4/1144—45, 1159-61, 1163-84, 1276-77). _ 1. The Penn Central Analysis. In Penn Central, the Landmarks Law had been applied to prevent the erection of a tower above Grand Central Terminal. The decision of the Court upholding that application turned upon its assessment of the “severity of the impact of the law on [Penn Central’s] parcel” 438 U.S. at 136. Addressing that issue, the majority noted that the Landmarks Law did not interfere with the existing use of the property as a railroad terminal. Upon making that observation, however, the Court immediately pointed out that “[m]Jore importantly” the record showed that Penn Central not only received a profit on the Terminal but “a ‘reasonable return’ on its investment.” Id. The majority then found that the impact of the law was mitigated by two factors indicating that Penn Central had not in fact lost all or most of its development rights, i.e., the air rights above the Terminal. First, the Court pointed out that after the initial rejection, Penn Central had not proposed an alternate design and suggested that the Commission might approve a smaller building. Second, the Court pointed out that the air rights above the Terminal could be transferred to various buildings owned by Penn Central that were adjacent to the a SUR cr eee rights. 438 U.S. at 137. In the present case, the court of appeals sustained the finding of the district court that petitioner was able to continue to use the community house and held that fact to be dispositive. The key factors in the Penn Central analysis were dismissed as irrelevant or brushed aside in conclusory terms. By that process, we submit, the court of —_ lost sight of the meaning of Penn Central. To begin with, the basic premise of the court of appeals — continued use of the property — rests upon an analysis wholly unlike anything found in Penn Central. Specifically, the premise rests upon an assessment of the adequacy of the proper- ty, the cost of addressing its deficiencies and the ability of petitioner to bear that cost. == With respect to the cost of repair and rehabilitation, petitioner had pointed out various errors in the $3 million esti- mate accepted by the district court, including the total omission of $1.5 million of work. The court of appeals, however, held that “even if the potential cost of repair totaled $4.5 million, the Church has not adequately demonstrated that it is unable to meet this expense.” (20a — 21a). That conclusion of the court of appeals rested upon a seriously distorted view of the petitioner’s financial condition. More importantly, however, the court’s focus on the financial capacity of the Church represented a significant departure from the analysis of Penn Central. The effect of that focus is to make the fact of a taking turn not on the severity of the impact of the law on “the parcel,” as in Penn Central, but ._ on the financial resources of the person or entity who happens to own the parcel. Such a mode of analysis finds no support in the decisions of this Court or concepts of basic fairness. The court of appeals further departed from Penn Central in disregarding the factor of “reasonable return”. In this case, it was demonstrated beyond serious argument that, if the Church’s community house were devoted to commercial pur- poses, it would not yield a reasonable return.” The court of appeals, however, dismissed that fact as “irrelevant” on the grounds that the existing use of the community house was for charitable rather than commercial purposes. In lieu of a “reasonable return” the court of appeals simply referred once again to the posited continued use of the community house by petitioner. The court, however, ignored the fact that continued 13. The court of appeals indicated that “the use of the Community House would yield an estimated return of only six percent.” (17a). In fact, the record showed that it would yield a return of less than six percent of assessed valuation. (A. 490). As the New York Court of Appeals hus made clear, assessed valuation is not a proper basis on which to determine reasonable return. Seawall Associates v. City of New York, 74 N.Y.2d 92, 114 n. 13, 542 N.E.2d 1059, 1070 n. 13, cert. denied sub nom. Wilkerson v. Seawall Associates, _ US. __, 110 S.Ct. 500 (1989). agp. use alone had not been deemed sufficient in Penn Central. On the contrary, as we have shown, this Court had found it to be more important that Penn Central was able to derive a reason- able return from such use. The inability of a charitable owner to derive a reason- able return from a landmarked site may not, by itself, be dispositive. Such inability, however, makes it even more impor- tant to determine whether the impact of the Landmarks Law is mitigated by any other factor. Here it is not and the severity of that impact — destroying more than eighty percent of the value of “the parcel” — remains wholly unmitigated. In Penn Central, the Court questioned whether Penn Central had lost all of the value of the air rights above the Terminal since the Commission had not ruled out the possibility of approving an alternative design for a smaller building. In this case, the court of appeals sought to apply that analysis to peti- tioner, but the facts herein do not fit. In this case, petitioner did precisely what this Court had suggested in Penn Central — after its first application was rejected, it returned with a second proposal specifically designed to respond to the Commission’s objections to the first application and proposing a significantly smaller building. Nevertheless, the court of appeals attempted to draw a parallel with Penn Central, stating that respondent had “invited appellant to propose an addition to the Community House in the instant matter.” (17a). In fact, however, the only “addition” that respondent ever indicated it might accept was a two-story expansion. (A. 825-27, A. 839-40). Such an addition might alleviate some of petitioner’s space problems, but it would gener- ate no revenue to recover the cost of the expansion, let alone any funds for support of petitioner’s mission or for repair and reha- bilitation of the church and community house. The present case also differs from Penn Central in that petitioner has no feasible means of transferring its development rights to another site. As this Court noted in Penn Central, air rights are transferable only to a contiguous site, i.e., across the ~24- street or across an intersection. 438 U.S. at 113-14. Petitioner, unlike Penn Central, owns no other properties to which its air rights could be transferred and has no other prospects for such a transfer. (A. 388-95). Thus, although the court of appeals suggested that petitioner’s rights are not “worthless,” it is clear that such rights have no immediate value and that their possible value at some future time is, at best, wholly speculative. If that does not make petitioner’s development rights “worthless,” it comes very close indeed. 2. The Cases Subsequent to Penn Central. While Penn Central is the only decision of this Court involving the Landmarks Law, or landmarking in general, it is by no means the only decision relevant to the issues herein. In Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987), as in Penn Central, the Court rejected a claim under the takings clause. The analysis of the Court in Keystone, however, clearly supports St. Bartholomew’s claims. (2) The nature of the State interest and “reciprocity of advantage”. In Keystone, the Court rejected a challenge to the facial validity of a law prohibiting the mining of certain coal to prevent the subsidence of the surface estate. The law appeared to be similar in purpose and effect to a law that the Court had invalidated in Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922). In Keystone, however, the Court distinguished the later statute on the ground that it was more clearly designed to protect important public interests. The Court emphasized that “the nature of the State’s action is critical in takings analysis” and cited the numerous takings cases that had involved a “noxious use” or some use of property analogous to 4 common law nuisance. The Court also gave renewed importance to the concept of “reciprocity of advantage” that was first articulated by Justice Holmes in Pennsylvania Coal and had been stressed by then Justice Rehnquist, dissenting in Penn Central, 438 U.S. at 144-50. In sustaining the facial validity of the Landmarks Law in Penn Central, the Court had, by footnote, appeared to as minimize the importance of whether the challenged regulation sought to restrain a “noxious” use 438 U.S. at 133-34, n. 30. The decision in Keystone, however, restored that factor to the forefront of takings analysis. That is not to say, and we do not urge, that a regulation is necessarily invalid if it is not addressed to a noxious use or some analogous condition. Thus, we do not seek to overturn the determination in Penn Central that the Landmarks Law is facially valid. Nevertheless, when a particu- lar application of that law is challenged, the nature of the law — and hence the nature of the government’s interest — remains highly relevant. In the present case, the governmental interest is remarkably weak. As previously shown, the proposed develop- ment would leave the church building unimpaired. See, supra, p.13. Moreover, development of the community house site would provide the funds that are desperately needed to restore and preserve the church building.“ ‘Similarly, the absence of any reciprocity of advantage enjoyed by petitioner is striking. A landowner who is burdened by the restrictions of a zoning law or a historic district receives the benefit of the same restrictions being applied to adjacent landowners. See Penn Central, supra, 438 U.S. at 147, Rehnquist, J., dissenting. Where individual buildings are land- marked, however, any benefit to the owner from the landmark- ing of other buildings is attenuated at best. Indeed, this case stands any concept of a reciprocity of advantage on its head. 14. Indeed, the application of the Landmarks Law in the present case fails to meet the fundamental requirement of substantially advancing a legitimate state interest. See Nollan v. California Coastal Comm., 483 U.S. 825, 834— 35 (1987); Agins v. Tiburon, 447 U.S. 255, 260 (1980); Nectow v. Cambridge, 277 U.S. 183 (1928). The court of appeals held that the governmental interest identified in Penn Central was “equally applicable” in the present case but made no attempt to support that conclusion with any analysis of the impact of the proposed building. ee When St. Bartholomew’s was built in 1918, and for many years thereafter, Park Avenue was zoned for residential use. The Church shared with its neighbors the benefits and lim- itations of that designation. The zoning law, however, was sub- sequently changed to permit commercial development. After World War II, commercial development blossomed and, ulti- mately, became all encompassing. While the City realized mil- lions of dollars in tax revenues from that development, it resulted in the displacement of the Church’s neighborhood con- gregation and the concomitant weakening of its financial viability. (A. 209; A. 375). Ironically, the City now seeks to prevent petitioner from adapting to the very environment the City itself created. (b) The value of the property taken. Keystone made it clear that the test for a regulatory taking requires a court to consider the value taken from the property. 480 US. at 497. In this case, viewing the Church’s property as a whole, the value taken from the property is $140 million, while the value remaining is $35 million. The court of appeals acknowledged that a large value had been taken from the property: “In this particular case, the revenues are very large because the Community House is on land that would be extremely valuable if put to commercial use.” (13a). Contrary to the command of Keystone, however, the court of appeals proceeded to ignore that value — holding that the only fact to be considered was the Church’s continued ability to use the property. Following Keystone, this Court upheld takings claims in two cases decided the same term. Hodel v. Irving, 481 U.S. 704 (1987) held that a taking was effected by a law that prohibited the devise of fractional shares of Indian lands. Nollan v. California Coastal Commission, 483 U.S. 825 (1987), found a taking in the required grant of an easement across the owner’s property. More recently, in Seawall Associates v. City of New York, 74 N.Y.2d 92, 542 N.E.2d 1059, cert. denied sub nom. Wilkerson v. Seawall Associates, _. * US. __, 110 S.Ct. 500 (1989), the New York Court of 7. Appeals provided a careful analysis of the decisions in Penn Central, Keystone, Hodel and Nollan. In Seawall, the court struck down the City’s law regu- lating single-room occupancy properties on the ground, inter alia, that it destroyed the right to develop such properties. The court noted that in Penn Central and Keysione, the Supreme Court had held, under the facts of those cases, that the partial loss of development rights did not constitute a taking. On the other hand, the court observed, Hode/ and Nollan had each found a taking in the total loss of a single element of property value. The Seawail opinion suggested that decisions in the later cases, Hodel and Nolian, had moved toward acceptance of the theory of “conceptual severance,’ [i.e., assessing only the value of the rights taken without regard to its relationship to the value of the whole property]”. 74 N.Y. 2d at 110, 542 N.E. 2d at 1067. Under the facts of Seawall, however, the court found the loss of development rights to be a taking under either approach: By any criterion — whether the property rights abol- ished or impaired are considered alone, as in Hodel and Nollan, or the values of these rights are compared with the values of the properties as a whole, as in Penn Central and Keystone — the conclusion is inescapable that the effect of the [law] is unconstitutionally to deprive owners of economically viable use of their properties. 74 N.Y.2d at 110, 542 N.E.2d at 1068. So here, the property rights appropriated by the Landmarks Law may be considered alone or in comparison to the value of the property as a whole. In either event, the fact of a taking is inescapable. What is not permissible, we submit, is the course taken by the court of appeals — to simply disregard the value of the property taken. it. 3. Conflict With the New York Court of Appeals. As shown in the preceding section, the decision of the court of appeals herein is fundamentally at odds with the analy- sis of the New York Court of Appeals in Seawall Associates. In addition, the decision is also in conflict with the constitutional standard adopted by that court with respect to the application of the Landmarks Law to charitable institutions. Specifically, as we have earlier noted, the standard adopted by the New York Court of Appeals is to determine whether landmark designation “‘physically or financially prevent[s] or seriously interferes with the carrying out of the charitable purpose” (emphasis added). Society for Ethical Culture v. Spatt, 51 N.Y.2d at 455, 415 N.E.2d at 925 (1980). Both the district court and the court of appeals cited Ethical Culture with apparent approval. Yet, both courts proceeded to apply a drastic —- but wholly unexplained — redaction of the Ethical Culture test. Specifically, both courts transformed the test into a requirement of proof that petitioner “can no longer carry out” its charitable purposes. Thus, they distorted the test by excising the key phrase “or seriously interferes with.” As a result, the test applied below is one that is in clear conflict with the decisions of the New York Court of Appeals. It is a test, we submit, that this Court should decisively reject. ~29- CONCLUSION For the foregoing reasons, petitioner respectfully prays that the Court issue a writ of certiorari to review the judgment of the Court of Appeals for the Second Circuit. Dated: December 10, 1990 Of Counsel Henry P. Monaghan New York, New York Kent Greenawalt New York, New York Raymond L. Vandenberg Chancellor of St. Bartholomew’s Church Respectfully submitted, Douglas M. Parker Counsel of Record Judah Gribetz George A. Pierce MUDGE ROSE GUTHRIE ALEXANDER & FERDON 180 Maiden Lane New York, New York 10038 (212) 510-7000 Counsel for Petitioner, The Rector, Wardens and Members of the Vestry of St. Bartholomew’s Church APPENDIX The RECTOR, WARDENS, AND MEMBERS OF THE VESTRY OF ST. BARTHOLOMEW’S CHURCH, Plaintiff-Appellee (Re: 88-7751), Plaintiff-Appellant (Re: 90-7101), . v. The CITY OF NEW YORK AND THE LANDMARKS PRESERVATION COMMISSION OF THE CITY OF NEW YORK, Defendants—Appellees (Re: 88-7751, 90-7101). Appeal of The COMMITTEE TO OPPOSE the SALE OF ST. BARTHOLOMEW’S CHURCH INCORPORATED, J. Sinclair Armstrong, Robert E. Morris, Jr., Doris Capp Stass, George H. Weiler, Il, Madeline Calder, Beatrice Lotz, Bromwell Ault, Jr., Neal Goldman, and Charlotte Pierce Armstrong, (Re: 88-7751). Nos. 1431, 1432, Docket 88-7751, 90-7101. United States Court of Appeals, Second Circuit. Argued July 17, 1990. Decided Sept. 12, 1990. 914 F.2d 348 . Church brought action against city Landmarks Preservation Commission alleging that application of Landmarks Preservation Law to church imposed unconstitu- tional burden on free exercise of religion and effected a taking of property without compensation. The United States District Court for the Southern District of New York, John E. Sprizzo, J., 728 F. Supp. 958, found that Landmarks Law did not violate right to free exercise of religion or right against taking of prop- erty without just compensation. Appeal was taken. The Court of Appeals, Winter, Circuit Judge, held that: (1) Landmarks 4 Law, as applied to auxiliary structure next to church’s main house of worship, was not unconstitutional burden of free exer- cise of religion and did not effect taking of property without just compensation; (2) church failed to show that: any space defi- ciency in building could not be remedied by expansion consistent with Landmarks Law; and (3) church failed to show prospective financial hardship entitling it to certificate of appropriateness. Affirmed. Douglas M. Parker, New York City (Judah Gribetz, Howard W. Goldstein, George A. Pierce, Mudge Rose Guthrie Alexander & Ferdon, Henry P. Kent Greenawalt, James G. Glazebrook, New York City, of counsel), Monaghan, for plaintiff-appellee (Re: 88-7751), plaintiff-appellant (Re: 90-7101). Elizabeth Dvorkin, New York City (Victor A. Kovner, Corp. Counsel of the City of New York, Leonard Koerner, Jonathan L. Pines, Dorothy Miner, New York City, of counsel), for defendants—appellees (Re: 88-7751 and 90-7101). Gerald D. Fischer, New York City, for appellants (Re: 88-7751), amici curiae Committee to Oppose the Sale of St. Bartholomew’s Church Inc., J. Sinclair Armstrong, Robert E. Morris, Jr., Doris Capp Stass, George H. Weiler, III, Madeleine Calder, Beatrice Lotz, Bromwell Ault, Jr., Neal Goldman and Charlotte Pierce Armstrong (Re: 90-7101). Donald G. Glascoff, Jr., Robert Knuts, Cadwalader, Wickersham & Taft, New York City, for amici curiae New York State Interfaith Com’n on Landmarking of Religious Property, Council of Churches of the City of New York, Inc., Queens Federation of Churches, New York State Council of Churches, Nat. Council of Churches of Christ in the U.S.A., Nat. Ass’n of Evangelicals, Baptist Joint Committee on Public Affairs, Evangelical Lutheran Church in America, New York Bd. of Rabbis, Dept. of Church in Soc., Div. of Homeland Ministries, Christian Church (Disciples of Christ), and Americans United for the Separation of Church and State (Re: 90-7101). Lee Boothby, Boothby, Ziprick & Yingst, Berrien Springs, Michigan, for amicus curiae Council on Religious Freedom (Re: 90-7101). George J. McCormack, Cusak & Stiles, New York City, Kevin M. Kearney, Hurley, Kearney & Lane, Brooklyn, New York, for amici curiae Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Brooklyn, and New York State Catholic Conference (Re: 90-7101). Frank Patton, Jr., Ellis, Stringfellow & Patton, New York City, for amicus curiae Church of St. Paul and St. Andrew (Re: 90-7101). John J. Kerr, Jr., Elizabeth P. Johnson, Nancy B. Mallery, Simpson Thacher & Bartlett, New York City, for amici curiae Nat. Trust for Historic Preservation, National Center for Preservation Law, New York Landmarks Conservancy, Preservation Action, Fine Arts Federation, Preservation League of New York State, and Women’s City Club of New York, Inc. (Re: 90-7101). William E. Hegarty, Howard G. Sloane, Cahill, Gordon & Reindel, New York City, for amicus curiae Municipal Art Soc. of New York, Inc. (Re: 90-7101). Before WINTER and WALKER, Circuit Judges, and MUKASEY,* District Judge. WINTER, Circuit Judge: This appeal poses the question of whether a church may be prevented by New York City’s Landmarks Law, now codified at New York City Administrative Code Sections 25-301 to 25-321 (1986), from replacing a church-owned building with an office tower. The question implicates both First and Fifth Amendment issues. Specifically, the Rector, Wardens, and ~$- Members of the Vestry of St. Bartholomew’s Church (“the Church”) appeal from Judge Sprizzo’s decision that the New York City Landmarks Law, as applied to an auxiliary structure next to the Church’s main house of worship, did not impose an unconstitutional burden on the free exercise of religion or effect a taking of property without just compensation. The district court grounded its decision on its finding that the Church had failed to prove that the landmark regulation prevented the Church from carrying out its religious and chari- table mission in its current buildings. We agree that this is the legal standard established by Supreme Court precedent govern- ing both free-exercise and takings claims. Moreover, we find no clear error in the district court’s factual determinations. We therefore affirm. We also affirm the denial of a motion to inter- vene by a group of persons opposed to the Church’s plans to develop its property. BACKGROUND St. Bartholomew’s Church is a Protestant Episcopal Church organized in 1835 under the laws of the State of New York as a not-for-profit religious corporation. The main house of worship (“the Church building”) stands on the east side of Park Avenue, between 50th and S5lst Streets, in New York City. Constructed beginning in 1917 according to the plans of architect Bertram G. Goodhue, the Church building is a nota- ble example of a Venetian adaptation of the Byzantine style, built on a Latin cross plan. Significant features include its poly- chromatic stone exterior, soaring octagona! dome, and large rose window. Perhaps most significantly, Goodhue incorporated into his building the Romanesque porch of St. Bartholomew’s former Church building at Madison Avenue and 44th Street. * Hon. Michael B. Mukasey, United States District Judge for the Southern District of New York, sitting by designation. 4- Designed by the renowned architectural firm of McKim, Mead & White, the porch is composed of a high arched central portal flanked by two lower arched doorways, all supported by slender columns. The doors themselves are richly decorated bronze, depicting Biblical themes. Adjacent to the Church building, at the northeast corner of Park Avenue and 50th Street, is a terraced, seven-story building known as the Community House. It is the replacement of this building with an office tower that is at issue in the instant matter. Completed in 1928 by associates of Goodhue, Community House complements the Church building in x materials and decoration. Together with the Church building, the Community House houses a variety of social and religious activities in which the Church is engaged. It contains a sixty— student preschool, a large theater, athletic facilities (including a pool, gymnasium, squash court, and weight and locker rooms), as well as several meeting rooms and offices for fellowship and counseling programs. A community ministry program, which provides food, clothing, and shelter to indigent persons, is oper- ated mainly from the Church building. Meals are prepared in a small pantry on the first floor and served in the mortuary chapel. Ten homeless persons are housed nightly in the narthex. : | In 1967, finding that “St. Bartholomew’s Church and Community House have a special character, special historical and aesthetic interest and value as part of the development, heri- tage and cultural aspects of New York City,” the Landmarks Preservation Commission of the City of New York (the “Commission”) designated both buildings as “landmarks” pur- suant to the Landmarks Law. This designation prohibits the alteration or demolition of the buildings without approval by the Commission. See N.Y.C. Admin. Code § 25-305(a)(1)( 1985). The Church did not object to the landmarking of its property. In December 1983, pursuant to what is now New York City Administrative Code Section 25-307, the Church 4 wvTFre applied to the Commission for a “certificate of appropriateness” permitting it to replace the Community House with a fifty—nine story office tower. This request was denied as an inappropriate alteration. In December 1984, the Church filed a second appli- cation, scaling down the proposed tower to forty-seven stories. This application was also denied. _ The Church thereafter filed a third application under a different procedure. Pursuant to Sections 2074.0 and 207-8.0 of the New York City Administrative Code,’ commonly known as the “hardship exception,” it sought a certificate of appropri- ateness for the forty-seven story tower on the ground of the Community House’s present inadequacy for church purposes. The Church’s application was the subject of a series of public hearings before the Commission in late 1985 and early 1986. At those hearings, the Commission gathered evidence from various interested parties, including expert testimony and written reports regarding the adequacy of the Community House for the Church’s charitable programs, the necessity and cost of struc- tural and mechanical repairs for the Church building and Community House, and the Church’s financial condition. Following the public hearings, the Commission convened in Executive Session, open to the public, on several occasions in February 1986. At these meetings the Commission discussed the Church’s application, accepted further submissions from interested parties, and took testimony and reports from its own pro bono experts. On February 24, the Commission voted to 1: Now found at Section 25-309, the provision states that a certificate of appropriateness shall be granted to a not-for-profit applicant who shows, inter alia, that such improvement has ceased to be adequate, suitable or appropri- ate for use for carrying out both (1) the purposés of such owner to which it is devoted and (2) those purposes to which it had been devoted when acquired unless such owner is not {[sic] longer engaged in pursuing such purposes. N.Y.C. Admin. Code § 25-309(a)(2)(c)(1985). he deny the application because the Church had failed to prove the necessary hardship. Several months later the Commission issued a lengthy written determination detailing the reasons for its denial. On April 8, 1986, the Church brought the instant action for declaratory and injunctive relief and damages pursuant to 42 U.S.C. § 1983. The complaint set forth a host of constitutional claims. It alleged that the Landmarks Law, facially and as applied to the Church, violates both the free exercise and estab- lishment clauses of the First Amendment by excessively burden- ing the practice of religion and entangling the government in religious affairs. It also alleged that the Landmarks Law vio- - lates the equal protection and due process clauses of the Fourteenth Amendment because it applies different standards to charitable and commercial institutions respectively and consti- tutes a taking of property without just compensation. In addi- tion, the Church alleged a variety of procedural due process vio- lations and brought a pendent state law claim alleging that the Church should have been granted a certificate of appropriate- ness under New York law. The Church moved for partial summary judgment on its claims of facial unconstitutionality. Defendants cross—moved for summary judgment on all claims. The district court granted summary judgment to defendants with respect to the issues of facial unconstitutionality only. On the First Amendment claims, the court ruled that the Landmarks Law “creates no more than an incidental burden on the practice of religion” and that entanglement doctrine was not applicable. On the equal protection claim, the court ruled that the different hardship tests applied to charitable and commercial organizations were rational. Finally, it held that the notice and hearing provisions of the Landmarks Law comport with constitutional standards of due process. The district court then held a bench trial with respect to the claims that the Landmarks Law is unconstitutional as applied to the Church. The parties agreed that the evidentiary atin record before the district court would be limited to the evidence presented to the Commission, contained in a twenty-three volume appendix. In considering the Church’s takings claim, the court adopted the standard articulated by New York State courts: An unconstitutional taking exists “where the landmark designation [of property owned by a charitable organization] would prevent or seriously interfere with the carrying out of the charitable purpose of the institution.” St. Bartholomew's Church vy. City of New York, 728 F. Supp. 958, 966-967 (S.D.N.Y. 1989)(opinion and order)(citing Society for Ethical Culture v. Spatt, 51 N.Y.2d 449, 454-55, 415 N.E.2d 922, 925, 434 N.Y.S.2d 932, 935 (1980); Lutheran Church in America v. City of New York, 35 N.Y.2d 121, 131, 316 N.E.2d 305, 311, 359 N.Y.S.2d 7, 16 (1974)). The district court applied the same test to the claim of an unconstitutional burden on religion. It thus stated, “[I])n this case, the First Amendment inquiry is identical in scope to the Fifth Amendment inquiry, since to pre- vail on either claim plaintiff must prove that it can no longer carry out its religious mission in its existing facilities.” Jd. 728 F. Supp. at 966-967. The district court then examined the record before the Commission in order to determine whether the Church had proved by a preponderance of the evidence that it can no longer carry out its charitable purpose in its existing facilities. The dis- trict court found that it had not, for three basic reasons. First, it ruled that the Church had failed to demonstrate that the Community House is insufficient to accommodate the various programs currently based there. Second, it found that the Church had exaggerated the cost of the necessary repairs to the structural and mechanical systems of the Church building and Community House. Third, the court held that the Church hau failed to prove that it cannot afford to make the necessary repairs and renovations to its buildings. Having concluded that the Church had not carried its burden of demonstrating that the Landmarks Law precludes it from continuing its activities in its existing facilities, the district court rejected the Church’s First and Fifth Amendment claims and entered judgment for defendants. On appeal, the Church renews its free exercise and tak- ings claims and argues that the district court’s factual findings were clearly erroneous. In the course of proceedings, the district court denied a motion to intervene on the side of defendants made by several individual parishioners and the Committee to Oppose the Sale of St. Bartholomew’s Church Incorporated, a group of St. Bartholomew’s members and others opposed to commercial development of the Church’s property. It held that the proposed intervenors had no ownership interest in the property at issue and that their participation would interfere with the efficient administration of the litigation. See St. Bartholomew’s Church v. City of New York, No. 86 Civ. 2848 (JES), slip op. (S.D.N.Y. Oct. 27, 1986)(order denying motion to intervene). A year later, after the parties agreed «hat the trial in the instant action should be conducted solely on the record before the Commission, the proposed intervenors renewed their motion, which was again denied. See St. Bartholomew’s Church v. City of New York, No. 86 Civ. 2848 (JES), slip op. (S.D.N.Y. Apr. 6, 1988)(order denying motion to intervene). The pro- posed intervenors appeal from this ruling. — 2. The district court treated the Church’s remaining procedural due process and state law claims as abandoned, because the Church had disavowed any interest in having a new hearing before the Commission, the only relief avail- able to remedy these claims. DISCUSSION Sections 1 and 2 of this portion of the opinion reject the Church’s free exercise and takings claims. Our discussion assumes the affirmance of the district court’s factual findings as detailed in section 3. . 1. The Free Exercise Claim ) The Church argues that the Landmarks Law substantially ) burdens religion in violation of the First Amendment as applied | to the states through the Fourteenth Amendment. In particular, | the Church contends that by denying its application to erect a | commercial office tower on its property, the City of New York and the Landmarks Commission (collectively, “the City”) have impaired the Church’s ability to carry on and expand the minis- terial and charitable activities that are central to its religious mission. It argues that the Community House is no longer a sufficient facility for its activities, and that the Church’s finan- cial base has eroded. The construction of an office tower similar to those that now surround St. Bartholomew’s in midtown Manhattan, the Church asserts, is a means to provide better space for some of the Church’s programs and income to support. and expand its various ministerial and community activities. The Church thus argues that even if the proposed office tower will not house all of the Church’s programs, the revenue gener- ated by renting commercial office space will enable the Church to move some of its programs—such as sheltering the homeless—off-site. The Church concludes that the Landmarks | Law unconstitutionally denies it the opportunity to exploit this means of carrying out its religious mission. Although the Landmarks Law substantially limits the options of the Church to re*se revenue for purposes of expanding religious charitable activities, we believe the Church’s claims are precluded by Supreme Court precedent. As the Court recently stated in Employment Division v. Smith, __ U.S. ___, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the free exercise clause prohibits above all “‘governmental -10- regulation of religious beliefs as such.”” Jd. 110 S.Ct. at 1599 (quoting Sherbert v. Verner, 374 U.S. 398, 402, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963) and citing cases). No one seri- ously contends that the Landmarks Law interferes with substan- tive religious views. However, apart from impinging on religious beliefs, governmental regulation may affect conduct or behavior associated with those beliefs. Supreme Court decisions indicate that while the government may not coerce an individual to adopt a certain belief or punish him for his religious views, it may pursuant to its general regulatory powers. For example, in Smith the Court held that the free exercise clause did not pro- hibit the State of Oregon from applying its drug laws to the reli- gious use of peyote. See 110 S.Ct. 1595. Cf. United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982). The synthesis of this caselaw has been stated as follows: “(T]he right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”” Smith, 110 S.Ct. at 1600 (quoting Lee, 455 US. at 263 n.3, 102 S.Ct. at 1058 n. 3 (Stevens, J., concurring)). The critical dis- tinction is thus between a neutral, generally applicable law that happens to bear on religiously motivated action, and a regula- tion that restricts certain conduct because it is religiously oriented. See id. 110 S.Ct. at 1599. The Landmarks Law is a facially neutral regulation of general applicability within the meaning of Supreme Court decisions. It thus applies to “[a]ny improvement, any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value.” N.Y.C. Admin. Code § 25-—302(n)(1986). It is true that the Landmarks Law affects many religious buildings. The Church thus asserts that of the six hundred land- marked sites, over fifteen percent are religious properties and over five percent are Episcopal churches. Nevertheless, we do it. 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. N.Y.C. Admin. Code § 25-302(n)(1986). This, however, is not evidence of an intent to discriminate against, or impinge on, religious belief in the designation of landmark sites. The Church’s brief cites commentators, including a former chair of the Commission, who are highly critical of the Landmarks Law on grounds that it accords great discretion to the Commission and that persons who have interests other than the preservation of historic sites or aesthetic structures may influence Commission decisions.’ Nevertheless, absent proof of the discriminatory exercise of discretion, there is no constitu- tional relevance to these observations. Zoning similarly regu- lates land use but it is hardly a process in which the exercise of discretion is constrained by scientific principles or unaffected by selfish or political interests, yet it passes constitutional muster. See Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). The Church argues that landmarking and zoning differ in that landmarking targets only individual parcels while zoning affects larger segments. However, the Landmarks Law permits the designation of historic districts, see N.Y.C. Admin. Code § 25—303(a)(4)(1986), while all zoning laws provide for vari- ances for individual sites. Even if the two forms of regulation bear the different characteristics asserted by the Church, those 3. The Landmarks Law made a cameo appearance in a recent best-selling novel as a vehicle for political retaliation against a clerical official seeking to develop Church property. See T. Wolfe, Bonfire of the Vanities, 569 (1987) (“Mort? You know that church, St. Timothy's? ... Right .. LANDMARK THE SON OF A BITCH!”). ~]2- eC ee Va 2? differences are of no consequence in light of Penn Central Transportation Company v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). There, the Court stated: [L]andmark laws are not like discriminatory, or ‘reverse spot,’ zoning: that is, a land-use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neigh- boring ones. In contrast to discriminatory zoning, which is the antithesis of land—use control as part of some comprehensive plan, the New York City law embodies a comprehensive plan to preserve structures of historic or aesthetic interest when- ever they might be found in the city.... Id. at 132, 98 S.Ct. at 2663 (citation omitted). It is obvious that the Landmarks Law has drastically restricted the Church’s ability to raise revenues to carry out its various charitable and ministerial programs. In this particular case, the revenues involved are very large because the Community House is on land that would be extremely valuable if put to commercial uses. Nevertheless, we understand Supreme Court decisions to indicate that neutral regulations that diminish the income of a religious organization do not implicate the free exercise clause. See Jimmy Swaggart Ministries v. Board of Equalization, __ US. ___, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990); Hernandez v. Commissioner, __._ US. __, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). The central question in identifying an unconstitutional burden is whether the claimant has been denied the ability to practice his religion or coerced in the nature of those practices. In Lyng v. Northwest Cemetery Protective Ass'n, 485 U.S. 439, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 5 4 (1988), the Court explained, It is true that ... indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment.... This does not and cannot imply that incidental effects of government pro- grams, which may make it more difficult to prac- tice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring for- ward a compelling justification for its otherwise lawful actions. The crucial word in the constitu- tional text is “prohibit” ... We agree with the district court that no First Amendment viola- tion has occurred absent a showing of discriminatory motive, coercion in religious practice or the Church’s inability to carry out its religious mission in its existing facilities. Cf. Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 872 (2d Cir. 1988). In sum, the Landmarks Law is a valid, neutral regulation of general applicability, and as explained below, we agree with the district court that the Church has failed to prove that it cannot continue its religious practice in its existing facilities.‘ 4. The Church also argues that the Landmarks Law involves an excessive degree of entanglement between church and state in violation of the establish- ment clause. The district court dismissed this argument as irrelevant in the present context, reasoning that the entanglement doctrine applies only to instances of government funding of religious organizations. However, in Jimmy Swaggart Ministries the Supreme Court considered an entanglement claim in the context of government taxation of the sale of religious materials by a religious organization. The Court found no constitutional violation, as the regulation imposed only routine administrative and recordkeeping obligations, involved no continuing surveillance of the organization, and did not inquire into the religious doctrine or motives of the organization. See 110 S.Ct. at 697-99. These same factors are of course largely true of the Landmarks Law. The only scrutiny of the Church occurred in the proceedings for a certificate of appropriateness, and the matters scrutinized were exclusively financial and architectural. This degree of interaction does not rise to the level of unconsti- tutiona] entanglement. ft. 2. The Takings Claim The Church also claims that the Landmarks Law so severely restricts its ability to use its property that it constitutes confiscation of property without just compensation in violation of the Fifth and Fourteenth Amendments.’ However, the Supreme Court’s decision in Penn Central compels us to hold In Penn Central, the Supreme Court held that the appli- cation of New York City’s Landmarks Law to Grand Central Terminal did not effect an unconstitutional taking. See 438 US. at 138, 98 S.Ct. at 2666. That famous beaux arts style train station, located in midtown Manhattan (just sight blocks from St. Bartholomew’s Church) was designated 2 landmark in 1967. See id. at 115-16, 98 S.Ct. at 2654-55. Shortly thereaf- ter, Penn Central Transportation Company (“Penn Central’), principal owner of the Terminal, in order to increase its income, sought to build a high-rise office tower atop the Terminal. The Landmarks Commission, however, denied the proposal because ““lq]juite simply, the tower would overwhelm the Terminal by its sheer mass.”” Jd. at 118, 98 S.Ct. at 2656 (quoting the record on appeal). The Supreme Court squarely rejected Penn Central’s claim that the building restriction had unconstitutionally “taken” its property. Central to the Court’s holding were the facts that the regulation did not interfere with the historical use of the property and that that use continued to be economically viable: [T]he New York City law does not interfere in any way with the present uses of the 7 erminal. Its designation as a landmark not only permits but contemplates that appellants may continue to use 5. The Fifth Amendment provides in part, “nor shall private property be taken for public use, without just compensation,” U.S. Const. amend. V, and is applicable to the states through the Fourteenth Amendment. See Chicago, B. &Q. R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). ft. the property precisely as it has been used for the past 65 years: as a railroad terminal containing office space and concessions. So the law does not interfere with what must be regarded as Penn Central’s primary expectation concerning the use of the parcel. More importantly, on this record, we must regard the New York City law as permit- ting Penn Central not only to profit from the Terminal but also to obtain a “reasonable return” on its investment. Id. at 136, 98 S.Ct. at 2665. Applying the Penn Central standard to property used for charitable purposes, the constitutional question is whether the land—use regulation impairs the continued operation of the prop- erty in its originally expected use. We conclude that the Landmarks Law does not effect an unconstitutional taking because the Church can continue its existing charitable and reli- gious activities in its current facilities. Although the regulation may “freeze” the Church’s property in its existing use and pre- vent the Church from expanding or altering its activities, Penn Central explicitly permits this. In that case, the Landmarks Law diminished the opportunity for Penn Central to earn what might have been substantial amounts by preventing it from building a skyscraper atop the Terminal. Here it prevents a similar development by the Church—one that, in contrast to the proposal to build an office tower over Grand Central Terminal, would involve the razing of a landmarked building—at least so long as the Church is able to continue its present activities in the existing buildings. In both cases, the deprivation of commercial value is palpable, but as we understand Penn Central, it does not constitute a taking so long as continued use for present activities is viable. The Church offers several arguments to distinguish Penn Central, but we find them unavailing. First, it argues that while Penn Central stipulated that it was able to earn a “reasonable return” on the Termin... sve. under the regulation, see 438 U.S. at 129, 98 S.Ct. at 2662, in this case, the use of the Community House for commercial purposes would yield an estimated return of only six percent. Even if true, this fact is irrelevant. “Reasonable return” analysis was appropriate to determine the viability of the existing commercial use of the Terminal but has no bearing on the instant matter because the existing use of the Community House is for charitable rather than commercial purposes. So long as the Church can continue to use its property in the way that it has been using it—to house its charitable and religious activity— there is no unconstitutional taking. Second, the Church notes that it presented a second pro- posal for a smalier building to the Commission, but Penn Central did not. This hardly makes any difference. Just as the Commission in Penn Central remained open to a building addi- tion that “‘would harmonize in scale, material and character,’ 438 U.S. at 137, 98 S.Ct. at 2666 (quoting record on appeal), with the Terminal, it invited appellant to propose an addition to the Community House in the instant matter. Finally, we reject as unsupported appellant’s argument that in Penn Central the property owner continued to enjoy valuable, transferable rights to develop the airspace above the Terminal, see 438 U.S. at 137, 98 S.Ct. at 2666, while the Church’s development rights have little value. See Section 3(a) infra.‘ 6. Appellant urges further that application of the Landmarks Law to the Church dees not substantially advance a legitimate state interest. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 834-35, 107 S.Ct. 3141, 3146-47, 97 L.Ed.2d 677 (1987). While land use restrictions must be reviewed in the context of the individual property in question, see Nectow v. City of Cambridge, 277 US. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928), the same government interest held to be valid in Penn Central—“preserving struc- tures and areas with special historic, architectural or cultural significance,” 438 US. at 129, 98 S.Ct. at 2662—is equally applicable here. =| a 3. Findings of the District Court The principal factual finding of the district court—one central to its rejection of the Church’s free exercise and takings claims—was that the Church “failed to show by a preponder- ance of the evidence that it can no longer conduct its charitable activities or carry out its religious mission in its existing facilities.” St. Bartholomew's Church v. City of New York, 728 F. Supp. 958, 974-75 (S.D.N.Y. 1989)(opinion and order). The Church claims that the Community House is an inad- equate facility in which to carry out the various activities that presently comprise the Church’s religious mission and charitable purpose. It further claims that it cannot afford to make the needed repairs and renovations to the Community House and Church building. It concludes that it must be allowed to replace the Community House with a revenue—generating office tower. The district court was unconvinced. It found that the Churct failed to prove that the Community House is fundamentally unsuitable for its current use and that the cost of repair and rehabilitation is beyond the financial means of the Church. Appellant argues on appeal that these findings were clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, 470 US. 564, 574-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); Sygma Photo News, Inc. v. High Society Magazine, 778 F.2d 89, 95-96 (2d Cir. 1985). We disagree. a. Adequacy of the Community House The Church claims that the amount and configuration of — usable space in the Community House is insufficient to accom- modate the Church’s various programs. It relies principally upon an analysis of space in the Community House by Walker Associates, an interior design firm hired by the Church. Presented to the Commission in three written reports and related oral testimony (collectively, “the Walker Report’’), this study concluded that the demands for space by the Church’s various programs exceeded the capacity of the Community House. additionally, the Walker Report stated that renovation 46 or expansion was impractical due to the structural inflexibility of the building. The district court discredited the Walker Report. With regard to space, there is no dispute that the Community House currently is too small. The Walker Report found that 8000 square feet of extra space is needed. The Commission placed the deficiency at about 4500 square feet.’ Fatal, however, to the Church’s claim is the absence of any showing that the space deficiency in the Community House cannot be remedied by a reconfiguration or expansion that is consistent with the purposes of the Landmarks Law. The Walker Report assumed that the Community House had an out- moded structure that precluded such an option. In fact, the building has a modern, light steel frame structure and was designed so that two additional floors could easily be added. Moreover, the Commission has indicated that it would be recep- tive to a proposal from the Church for such an addition. While expanding the amount of available space in the Community House may not provide ideal facilities for the Church’s expanded programs, it does offer a means of continuing those programs in the existing building. Certainly the intermediate option of limited expansion must be thoroughly explored before jumping to replacement with a forty-seven story office building. 7. The Walker Report determined that the total space required in the Community House is 41,500 square feet, as against 33,500 square feet of available useable space. The Commission accepted the figure for require- ments, but estimated the available useable space at approximately 37,000 square feet. 8. For instance, the existing building cannot readily accommodate the larger gymnasium or greater theater wing space sought by the Church. ~19-- b. Cost of Repair and Rehabilitation The Church also argues that the necessary repairs to the physically deteriorating Church building and Community House would be prohibitively expensive. It relies on a study of the mechanical systems and exteriors of those buildings prepared by O’Brien, Krietzburg and Associates, a construction management . firm, and submitted to the Commission through written reports and oral testimony (collectively, “the OKA Report”). The OKA Report estimated that it would cost approximately $11 million over two years to bring the buildings’ mechanical, elec- trical, and plumbing systems into proper working order and to repair the buildings’ exteriors. The district court also rejected this conclusion, faulting the OKA Report for being biased in favor of replacement over rehabilitation, ignoring actual conditions at the property site, and using an inappropriate method of estimating costs. Further, the district court pointed to contradictory evidence presented to the Commission, both by persons opposing the proposed develop- ment and by neutral consultants. Based on this information, the court found $3 million “phased in over a period of several years” to be a reasonable estimate for repairs and replacement. On appeal, the Church does not seriously defend the $11 million estimate contained in the OKA Report. Instead, it accepts the $3 million estimate for the work that it covers, but argues that this figure disregards certain “major elements of cost.” In particular, the Church asserts that an additional $500,000 is necessary for life safety measures, $647,000 for repair of the church organ, and $360,000 for architectural and engineering fees. The City counters that the life safety addi- tions would unnecessarily exceed building code requirements, that organ repair is not a proper expense for this proceeding, and that design fees would be negligible. We need not rule on this dispute over approximately $1.5 million because it is not crucial to the district court’s operative: factual finding. As our discussion in the next section indicates, -20- CEN ery TA et See ee Sa a ng A Te lt I We ne tee MeN yo Ae Oe eg DR OE ae See ee OE er eae even if the potential cost of repairs totaled $4.5 million, the Church has not adequately demonstrated that it is unable to meet this expense. Thus, the district court’s central finding that the Church had failed to prove that it cannot continue in its existing facilities does not hinge on whether any portion of this $1.5 million was excluded from its estimate of repair costs. c. The Church’s Finances As a corollary to its claim that repair and rehabilitation of the Church building and Community House would be too costiy, the Church argues that its financial condition does not allow it to make the necessary improvements and also continue its other programs. The district court, however, found that appellant had failed adequately to prove this assertion, a finding that is not clearly erroneous. The Church has three primary sources of support and revenue: contributions in the form of pledges and offerings col- lected at worship services, income earned on investments, and fees charged for participation in activities conducted under its sponsorship. Investment income is derived from the Church’s investment portfolio, known as the Consolidated Church Fund, the value of which stood at nearly $11 million at the end of 1984. The principal of this endowment consists of funds received as gifts or bequests. In addition, the Church’s endow- ment includes a Properties Fund, representing resources in Church-owned property at acquired cost, net of depreciation, and a miscellaneous General Fund. Combined, these funds totaled just under $3.5 million at the end of 1984, giving the Church an overall endowment of about $14.3 million at that time. Over the decade preceding 1985, the Church’s sources of revenue have sporadically kept pace with expenses, exceeding them in 1975, 1977, 1980, 1983 and 1984, and falling behind in 1976, 1978, 1979, 1981, and 1982. On the whole, the Church had only a slight net deficit over this period. The Church’s principal argument is that a major improvement expenditure of the type required to repair and efina renovate the Church building and Community House would severely damage this “precarious” balance of revenues and expenses. Because such an expenditure would come from endowment funds, the Church contends, future investment income will inevitably decline as the result of a depleted portfolio. Such a decrease in future revenues, it concludes, will produce “severe deficits.” While a reduced principal will yield less investment income, the Caurch has not demonstrated that its budget cannot withstand building improvement expenditures under a reason- able financing procedure. For example, as the district court noted, withdrawals from the endowment might be made gradu- ally to minimize lost investment income, or the Church might borrow against its endowment, and repay the loan over an extended period of time. Appellant has offered no financial pro- jections or cash flow analyses to prove that these financing methods are not feasible. Without such data, the district court’s finding that the Church failed to prove prospective financial hardship is not clearly erroneous. We also cannot ignore the paucity of evidence offered by the Church to show that other forms of revenue are not available. Its claim that a capital fundraising drive already has been exhausted as a financing possibility is undercut by evidence that longtime members of the congregation cannot recall any such drive. Also, evidence before the Commission indicated that the transferable development rights for the airspace above the Church property are, contrary to the Church’s claim, not worthless. Finally, the Church argues that even if its endowment could withstand a building project, it is not at liberty to with- draw large sums for that purpose because of legal restrictions on the use of its investment funds. In particular, it urges that Section 717 of the New York Not-For-Profit Corporation Law prohibits the Church from expending the sums necessary to undergo a building project. That provision, however, does no more than impose upon the Church a fiduciary duty of care to a, |, manage the congregation’s money in a prudent and responsible fashion, see N.Y. Not-for-Profit Corp. Law §§ 513, 717 (McKinney Supp. 1990), and would be implicated only if the expenditures in question would unacceptably impair the _ Church’s financial condition.’ 4. The Motion to Intervene The proposed intervenors argue that the district court should have granted their motion to intervene on the side of the defendants at trial. We may reverse the denial of a motion to intervene only for “abuse of discretion.” See United States v. Hooker Chemical & Plastics, 749 F.2d 968, 990 (2d Cir. 1984). No such abuse is present here. The district court prop- erly denied intervention as of right under Fed.R.Civ.P. 24(a)(2) because the proposed intervenors lack any legally protectable interest in this matter. Under New York law, as a Protestant Episcopal Church, St. Bartholomew’s is a corporate body placed in the trusteeship of its church wardens and vestrymen. See New York Religious Corporation Law § 41 (McKinney Supp. 1990). To the extent that the proposed intervenors are members of the parish, they enjoy only the right to vote in the election of the church wardens and vestrymen. See id. § 43. Thus, the Rector, Wardens and Members of the Vestry is the proper party to litigate the constitutionality of encumbrances placed on Church property. 3g ‘ Nor did the district court abuse its discretion by denying permissive intervention under Rule 24(b). It was eminently reasonable to conclude that intervention only would complicate 9. Although the Church also points to Section 513 of the Not-for-Profit Corporation Law, which deals with the administration of assets received for specific purposes, see N.Y. Not-for-Profit Corp. Law § 513 (McKinney Supp. 1990), it concedes that donor—imposed restrictions are not a “principal constraint” preventing the improvement of its property. It does not challenge the district court’s finding that enough of the Church’s funds are unrestricted so as to allow it to undertake a building project. the litigation, and thereby “unduly delay ... the adjudication of the rights of the original parties.” Fed.R.Civ.P. 24(b). CONCLUSION - For the reasons stated above, we affirm both the judgment of the district court in favor of the defendants—appellees and the order of that court denying the motion to intervene. —24- The RECTOR, WARDENS, AND MEMBERS OF THE VESTRY OF ST. BARTHOLOMEW’S CHURCH, Piaintiff, v. CITY OF NEW YORK, AND LANDMARKS PRESERVATION COMMISSION OF THE CITY OF NEW YORK, Defendants. No. 86 Civ. 2848 (JES). United States District Court, S.D. New York. Dec. 13, 1989. As Amended Jan. 24, 1990. 728 F. Supp. 958 Church sued city Landmarks Preservation Commission, seeking determination that statute under which Commission had denied church’s application of certificate of appropriateness to tear down activities building portion of designated landmark complex and replace it with high-rise office building which would be used in part for church activities, on grounds that stat- ute violated church’s First, Fifth and Fourteenth Amendment rights. The District Court, Sprizzo, J., held that: (1) statute did not violate free exercise clause; (2) statute did not involve government in excessive entanglement with affairs of church; (3) statute did not violate equal protection rights of church by imposing different standards for granting certificates in the cases of commercial and charitable entities; (4) statute did not deprive church of its procedural due process rights; and (5) stat- ute was not unconstitutional as applied, as church failed to demonstrate that it could not use existing facilities, with affordable rehabilitation, to satisfy its religious needs. Judgment for Commission. Mudge, Rose, Guthrie, Aiexander & Ferdon, New York City (Douglas M. Parker, Judah Gribetz, Howard W. Goldstein, George A. Pierce, of counsel), Henry P. Monaghan, Kent Greenawalt, James G. Glazebrook, Chancellor of St. Bartholomew's Church, New York City, for plaintiff. Cadwalader, Wickersham & Taft, New York City (Donald G. Glascoff, Jr., Joseph Polizzotto, Lisa J. Sotto, of counsel), for amicus curiae in support of plaintiff (New York State Interfaith Commission on Landmarking of Religious Property). Cusack & Stiles, New York City (George J. McCormack, of counsel), for amici curiae in support of plain- tiff (Roman Catholic Archdiocese of New York). Hurley, Kearney & Lane, Brooklyn, N.Y. (Kevin M. Kearney, of counsel), for amici curiae in support of plaintiff (Roman Catholic Archdiocese of Brookiyn). Jeffrey R. Notarbartolo, Brooklyn, N.Y., for amicus curiae in support of plaintiff (Committee of Denominational Executives). Peter L. Zimroth, Corp. Counsel of the City of New York, New York City (Jonathan L. Pines, Lucy A. Cardwell, Asst. Corp. Counsels, of counsel), for defendants. Simpson, Thacher & Bartlett, New York City (John J. Kerr, David W. Sussman, Elizabeth P. Johnson, of counsel), for amici curiae in support of defendants (The New York Landmarks Conservancy, Nat. Trust for Historic Preservation, Nat. Center for Preservation Law, Preservation Action, Fine Arts Federation, Preservation League of N.Y. State, and Women’s City Club of New York, Inc.). Mannarino Bader Bloom Fischer & Woll, P.C., New York City (Gerald D. Fischer, of counsel), for amicus curiae in support of defendants (Committee to Oppose the Sale of St. Bartholomew’s Church, Inc.). John Sexton, Norman Dorsen, New York City, for amicus curiae in support of defendants. Cahill Gordon & Reindel, New York City (William E. Hegarty, Howard G. Sloane, David F. Freedman, of counsel), for amici curiae in support of defendants (The New York Landmarks Conservancy, National Trust for Historic Preservation, National Center for Preservation Law, Preservation Action, Fine Arts Federation, Preservation League of New. York State, and Women’s City Club of New York, Inc.). OPINION AND ORDER SPRIZZO, District Judge: : Plaintiff, the Rector, Wardens and Members of the Vestry of St. Bartholomew’s Church bring this action pursuant to 42 U.S.C. § 1983, for declaratory and injunctive relief and for damages. Plaintiff contends that defendants, City of New York and the Landmarks Preservation Commission of the City of New York (“Commission”), have violated its rights under the First, Fifth and Fourteenth Amendments to the United States Constitution, and under the laws of the State of New York. The Court has, by agreement of the parties, held a bench trial on the evidence previously submitted to the Commission in 1985 and 1986. After reviewing that evidence de novo and considering the law applicable thereto, the Court makes the following find- ings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a)” 10. The parties have set forth the evidence submitted to the Commission in the form of a twenty-three volume appendix (“App.”). References to that evi- == BACKGROUND > St. Bartholomew’s Church is a Protestant Episcopal Church organized under the laws of the State of New York as a non-profit religious corporation. The Church building, designed by Bertram Goodhue, was completed in 1919, and is located on the east side of Park Avenue between East 50th and East 5ist Streets in the City of New York. See 8 App. 2540; 10 App. 3432. Next to the church building is a seven floor com- munity house constructed by Goodhue’s successor firm during the years 1926-28. See 8 App. 2540, 10 App. 3433; 11 App. 4062. The community house provides, in combination with the church building, a home for a variety of social and reli- gious activities in which the Church is engaged." In addition to the two structures, the Church’s Park Avenue property is improved by a garden and terrace area. See 11 App. 4062. In March of 1967, the church, the exterior of the commu- nity house and the surrounding property were designated as landmarks by the Commission, a designation plaintiff did not then oppose.” See 8 App. 2540. Subsequently, however, plain- tiff filed two applications with the Commission seeking a Certificate of Appropriateness under what is now N.Y. City Admin.Code § 25-307." The first such application, filed in dence in this Opinion are to the volume and page number of that appendix, e.g., 1 App. 246 refers to appendix volume one at page 246. 11. Among other things, the community house provides athletic facilities, including a pool and basketball court, a theatre, a pre-school for sixty stu- dents, meeting rooms, kitchen and dining facilities and office space. The church building, in conjunction with the community house, provides clothing, meals and sleeping quarters for the homeless. See 10 App. 3433-35. 12. The Church’s ability to alter or demolish the buildings is restricted by a landmark designation. Any such alteration requires the approval of the Commission. See N.Y.Admin.Code § 25-305(a)(1). 13. Section 307(a) provides in relevant part: “the commission shal] determine whether the proposed work would be appropriate for and consistent with the Bs December 1983, sought permission to tear down the community house and erect in its place a fifty—nine story office tower. See Affidavit of Gene Norman (“Norman Aff.) at 4 21. This application was denied as an inappropriate alteration on June 21, 1984. See id. at ¢ 25. The second application, filed in December 1984, sought to demolish the community house in favor of a forty-seven story office tower. See id. at | 27; 8 App. 2470. This application was also denied as inappropriate on August 26, 1985. See Norman Aff. at ¢ 29. After the denial of plaintiff's second application, a further application to build the forty-seven story tower was made on September 3, 1985, on grounds of insufficient return pursuant to sections 2074.0 and 207-8.0 of the New York City Administrative Code.“ See 10 App. 3234. The Commission held public hearings on plaintiffs third application on October 29, 1985, December 3, 1985, and January 21, 1986. See 2 App. 321; 3 App. 704; 4 App. 1114. At those hearings the Commission heard testimony from all interested parties, including expert witnesses who testified regarding the suitability of the community house to its charita- ble purpose, the extent and cost of necessary structural and mechanical repairs for both the church and community house, and the state of the Church’s finances. In addition, the effectuation of the purposes of this chapter.” 14. Section 207-8.0(a)(2)(c), now found at § 25-309(a)(2)(c), provides that a certificate of appropriateness on the ground of insufficient return shall be granted when the applicant shows, inter alia, that: “such improvement has ceased to be adequate, suitable or appropriate for use for carrying out both (1) the purposes of such owner to which it is devoted and (2) those purposes to which it had been devoted when acquired unless such owner is no engaged in pursuing such purposes.” In addition, New York law requires that a certificate of appropriateness be granted where failure to do so would “prevent or seriously interfere” with the applicant’s ability to carry out its charitable purpose. See Society for Ethical Culture v. Spatt, 51 N.Y.2d 449, 454-55, 415 N.E.2d 922, 925, 434 N.Y.S.2d 932, 935 (1980); Lutheran Church in America v. City of New York, 35 N.Y.2d 121, 131, 316 N.E.2¢ 305, 311, 359 N.Y.S.2d 7, 16 (1974). fp. to the public, on February 6, 11, 18, 20, and 24, 1986 to discuss L | i | mination denying the application. See id. at 4 68; 19 App. 6448. Thereafter, plaintiff brought the instant action alleging the following constitutional claims: 1) that the landmark laws are facially unconstitutional to the extent they impact the prop- erty of any church because they interfere with the free exercise of religion in violation of the First Amendment; 2) that the land- mark laws are facially unconstitutional because they treat chari- table and commercial institutions differently in violation of the equal protection clause of the Fourteenth Amendment; 3) that the landmark laws are unconstitutional as applied to St. Bartholomew’s as a consequence of the Commission’s denial of their applications for a certificate of appropriateness, because that denial interfered with the free exercise of religion and because the denials constitute a taking of property without com- pensation; 4) that the landmark laws both facially and as applied to St. Bartholomew’s violate the establishment clause by requiring an intrusive examination of the church’s internal affairs in the hardship application process; 5) that the landmark laws both facially and as applied violate the doctrine of substan- tive due process by depriving the Church of its property’s rea- sonable income production without a compelling state interest; 6) that the legal standards for designation of a landmark and for granting a certificate of appropriateness are impermissibly vague in violation of the due process clause of the Fourteenth Amendment; 7) that the lack of cross—-examination of witnesses in the certificate of appro [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3220%3A01. Public record. Not legal advice.