Amicus Curiae Brief — Committee to Oppose the Sale of St. Bartholomew's Church, Inc. v. Rector

Supreme Court, U.%,

(5) FILED

4 gogePH F. SPANIOL, Jf,

IN THE i _ CLR

Supreme Court of the United States

OctTosBer TERM, 1990

THE RECTOR, WARDENS AND MEMBERS OF THE

VESTRY OF ST. BARTHOLOMEW’S CHURCH,

Petitioners,

VS.

THE CITY OF NEW YORK AND

THE LANDMARKS PRESERVATION COMMISSION

OF THE CITY OF NEW YORK,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF THE CHURCH OF ST. PAUL AND ST.

ANDREW AS AMICUS CURIAE IN SUPPORT OF

PETITIONER'S PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

E.uis STRINGFELLOW & PATTON

Counsel for Amicus Curiae

The Church of St. Paul and

St. Andrew

51 East 42nd Street

New York, New York 10017

FRANK PATTON, JR. (212) 867-0180

Of Counsel

January 31, 1991

TABLE OF CONTENTS

a

Argument

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The Church’s Hardship Proceeding ...........

The Commission’s Hearing Process ...........

The Commission’s Absence of Neutrality ......

Be er eee

Effect on the Church of the Commission’s

Actions

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TABLE OF AUTHORITIES

Cases Page

Church of St. Paul and St. Andrew v. Barwick,

67 N.Y.2d 510, cert. denied, 479 U.S. 985

IS CRSERERS Gee aa a RS anor 3, 8, 9

Lutheran Church v. City of New York, 35 NY2d

Ee el Caine swe wh even de do 0 10

Penn Central Transportation Co. v. City of New

a I is PE RTO oo on cee sjoecec 2,17

Matter of Society for Ethical Culture v. Spatt, 51

EE Re 10

Matter of Trustees of Sailors’ Snug Harbor v.

Platt, 29 AD2d 376 (1968) .................. 10

St. Bartholomew's Church v. City of New York,

914 F.2d 348 (2nd Cir. 1990)................ 2, 16, 17

No. 90-900

IN THE

Supreme Court of the United States

OctToBER TERM, 1990

THE RECTOR, WARDENS AND MEMBERS OF THE

VESTRY OF ST. BARTHOLOMEW’S CHURCH,

Petitioners,

VS.

THE CITY OF NEW YORK AND

THE LANDMARKS PRESERVATION COMMISSION

OF THE CITY OF NEW YORK,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF THE CHURCH OF ST. PAUL AND ST.

ANDREW AS AMICUS CURIAE IN SUPPORT OF

PETITIONER'S PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

INTRODUCTION

The Church of St. Paul and St. Andrew, 263 West End Avenue,

New York, New York, submits this brief as amicus curiae in sup-

port of the application of petitioners The Rector, Wardens and

Members of the Vestry of St. Bartholomew’s Church, for a writ

of certiorari to the United States Court of Appeals for the Second

Circuit.

INTEREST OF THE AMICUS

The Church of St. Paul and St. Andrew is a United Methodist

church congregation located at the corner of West End Avenue

and West 86th Street, Manhattan. Its church building was

designated a landmark in 198] over the strong objections of the

congregation. Despite the severely deteriorated condition of that

building and the Church’s almost total lack of funds to renovate

or merely maintain the building, the Landmarks Preservation

Commission has strenuously, and so far successfully, opposed

- in the New York courts and thereafter in a hardship proceeding

before the Commission - the efforts of the Church to obtain per-

mission to replace the decayed structure.

The Commission’s opposition to the Church of St. Paul and

St. Andrew reflects the Commission’s policy that, regardless of

the physical and financial hardship imposed on a religious in-

stitution by a landmarked structure, the structure is to be preserv-

ed at all costs.

The Church of St. Paul and St. Andrew is deeply concerned

for itself and for all other churches and religious institutions

at the conclusion of the court of appeals in the proceedings below

that the Supreme Court decision in Penn Central Transporta-

tion Co. v. City of New York, 438 U.S. 104 (1978) permits land-

mark regulation to “‘freeze’ a church’s property in its existing

use and prevent the Church from expanding or altering its ac-

tivities . . .” St. Bartholomew's Church v. City of New York,

914 F.2d 348 (2d Cir. 1990) at page 356. The Church of St. Paul

and St. Andrew has been the victim of just such “freezing.”

As this Court considers the petition for a writ of certiorari

of St. Bartholomew’s Church, we urge that the Court recognize

that the confiscatory impact of the Landmarks Law on religious

institutions is by no means limited to that particular church.

The devastating experience of the Church of St. Paul and St.

Andrew shows how that Law is unconstitutional as applied both

to the Church of St. Paul and St. Andrew and to the petitioner

herein.

SUMMARY OF ARGUMENT

The Church of St. Paul and St. Andrew occupies a large decay-

ing building on the West side of Manhattan which dates back

to 1897. The Church conducts an active program of religious

worship and mission outreach, including programs for the

hungry and homeless. All of these programs have been harmed

and limited by the progressive deterioration of the structure, by

growing safety problems, by major interior design deficiencies,

and by the tremendous financial drain of just trying to main-

tain and operate the building. The Church has an endowment

of less than $100,000 and no means of renovating or restoring

the building.

After much study the Church decided in 1980 that to survive

as a religious congregation and carry out its mission and pro-

gram it would have to demolish the structure and to put up a

new building on the site, to provide safe, functional and

economic facilities. The new structure was to include residen-

tial housing to fund the cost of construction and to help finance

the operation of the new church facility.

The Landmarks Commission designated the existing struc-

ture a landmark in 198] over the Church’s strong objections that

the designation would greatly harm the Church, was an un-

constitutional taking and a substantial interference with the

Church’s religious programs. After costly litigation, the New York

Court of Appeals held in a 4-3 decision that the Church’s claim

of an unconstitutional designation was premature and that the

Church should first apply to the Commission for permission to

rebuild, in a so-called “hardship” proceeding. Church of St.

Paul and St. Andrew v. Barwick, 67 N.Y.2d 510, cert. denied,

479 U.S. 985 (1986).

In 1988 the Church filed a hardship proceeding with the Com-

mission, and was strenuously opposed by two private agencies

with close ties to the Commission: the Landmarks Conservan-

cy and the Municipal Art Society. The Church’s engineering

study showed that more than $8,000,000 were needed to make

the existing structure safe and usable. A study by the New York

tac ileiiaiia aaa alee

City Department of General Services essentially confirmed the

Church’s cost study by identifying total costs for repair and

renovation of over $6,000,000.

Although the proceeding showed the disastrous condition of

the building and the Church’s lack of financial resources, the

Commission nevertheless denied the Church’s hardship applica-

tion by adopting the arguments of the Church’s opponents, e.g.,

that the Church first ought to try to raise in the community

the millions of dollars needed, or that the Church should try

to earn money by renting out its worship facilities. The Church

had already looked at all of those alternatives, and was left with

absoluteiy no choice but demolition.

The Commission’s hearing process, which denied any right

of cross examination to the Church, was little more than an open

town meeting, where the chief opponents presented fanciful

alternatives to demolition. The Commission largely ignored the

Church’s extensive proof of the devastating impact of the con-

dition of the building and the finances of the Church on the

Church’s religious and mission programs.

Since 1981, the financial costs to the Church of the Commis-

sion’s hearings and hardship proceedings have totalled well over

$100,000, an enormous burden for an impoverished church. Dur-

ing those years the Church’s building has further deteriorated,

and emergency repairs alone have taken more funds from the

Church’s programs.

The effect of the Commission’s actions has been to drain away

the time, energy and minuscule funds of the Church of St. Paul

and St. Andrew and to freeze the Church into its present struc-

ture and level of activities, thereby severely impairing its abili-

ty to carry out its religious purposes and its programs for the

hungry and the homeless, and indeed threatening its continued

existence. The Commission has effectively taken the bulk of the

value of the Church’s property (its only significant asset) for the

Commission’s purposes.

With its single goal of preserving the Church’s building at

all costs, the Commission has involved itself in the decision-

making process of the Church of St. Paul and St. Andrew as

to its programs and finances, thereby taking control of its pro-

perty and becoming firinly entangled in its religious affairs. That

same policy, implemented in the name of the Landmarks Law,

has been applied in the present case against petitioner St. Bar-

tholomew’s Church.

The Church of St. Paul and St. Andrew is at the crossroads

in determining its future. The Church must change. As stated

above, it can not continue in its building as is, because of the

safety hazards and tremendous costs. In essence, there are two

courses of action open to it: (1) a new building allowing the

Church both to survive and continue as a religious congrega-

tion with facilities and funds necessary to carry out its mission

and community programs, or (2) a congregation forced to ex-

pend its time, energies, and funds to renovate, restore, main-

tain, and operate this landmarked building. The Church of St.

Paul and St. Andrew is a Methodist Church congregation whose

purposes are clearly stated in course #1 above. The effect of the

Landmarks Commission’s actions (as discussed in the Argument

below) has been to force the Church to adopt course #2 above

and thereby to change its religious purposes and programs. This

is clearly an interference with its religious life and a coercion

to adopt new religious priorities and practices.

The same result has been accomplished by the Commission

with respect to the petitioner herein. We urge that the petition

be granted.

ARGUMENT

Background.

The church building of the Church of St. Paul and St. An-

drew, constructed in 1897, includes its sanctuary for worship

and its parish house, at the northeast corner of West End Avenue

and 86th Street, Manhattan. The congregation was founded in

1834, and the present structure is its third building.

As a congregation of the United Methodist Church, its pur-

poses are to carry out a broad mission of religious worship and

social ministry. In fulfilling that mission, the Church conducts

within the building an extensive program of religious services

as well as mission activities which include the Nutrition and

Health Center, the West Side Campaign Against Hunger, the

United Methodist Women program, young adult programs, bi-

ble study programs. This Church is well known as being in the

forefront of those institutions which provide extensive human

services to the community. For example, the two large feeding

programs mentioned above together produce 6000 meals per

week (or a total of 300,000 meals per year) for senior citizens,

the homeless and shut-ins, which are delivered all over the Ci-

ty by a fleet of five trucks. In addition the Church runs a shelter

for the homeless as well as extensive programs for young peo-

ple and college students designed to provide an alternative to

the crime and drugs all about them.

The int..1or design of the church building includes an

enormous sanctuary and a huge concert hall, which, together,

take up a disproportionate share of the church (80% of the

total volume of program space). The building design reflected

the needs of the Church when it was built in 1897. It does not

meet the needs and purposes of this Church in the 1970s, 1980s

or 1990s. There is little space for offices, meeting rooms,

mission outreach program space, etc., all of which are acutely

needed for the Church’s programs and mission. There are no

fire safety sprinkler systems or fire enclosed stairways. Por-

tions of the building can no longer be used because of safety

problems.

Over the years the church building had severely deteriorated,

mainly because the building’s limestone and terra cotta construc-

tion is highly susceptible to water damage. In the 1960s — long

before the New York City Landmarks Preservation Commission

showed any interest in the Church of St. Paul and St. Andrew

— the Church began to consider the demolition of the current

building and construction of a new building with adequate

facilities as major repair needs grew far more urgent and cost-

ly. The roof and exterior walls and decorations in particular

began to show signs of severe deterioration, presenting signifi-

cant hazards to members and pedestrians.

The Church has a membership of about 200 and is a vital

congregation which is slowly growing in numbers. The Church

has never had a large endowment, and, accordingly, funds for

renovations were generally raised by direct appeals to the con-

gregation. In a campaign from 1967 to 1971 the Church raised

about $75,000, virtually all of which was paid out for repairs

to the exterior and roof.

Despite these efforts, the deterioration of the church build-

ing accelerated. The Church simply could not generate the

funds needed to cover the huge costs of renovation and repairs.

With the escalating heating costs of its huge, inefficient in-

terior open spaces, the Church also generally ran an operating

deficit.

Decision to demolish.

By 1980 — again, before the Landmarks Preservation Com-

mission evidenced any interest in the Church’s building — the

Church had decided to demolish the church building and con-

struct a new building. The new building would include new,

modern and safe facilities which the Church presently lacks —

(1) adequate program and meeting rooms; (2) a fire safety

sprinkler system and fire enclosed stairways as required in the

New York City building codes for buildings built today; (3) an

elevator for the children, the elderly and the handicapped,

etc.; (4) kitchen and lavatory facilities; (5) handicap facilities;

and (6) a smaller sanctuary. It could also include residential

housing units which would provide the funds necessary for the

construction of its new building and which could also provide

operating income for the Church and its programs.

Local residents around the Church learned of the Church’s

decision to demolish, and a Preservationist movement was

mounted to persuade the Landmarks Preservation Commission

to stop the demolition by designating the church building a

landmark. The Church strenuously objected to the proposed

designation, but over those objections the Commission de-

signated the church building a landmark on November 24,

1981, completely ignoring the physical and financial problems

which the designation would produce. The Commission claimed

it could not examine this data until the “hardship proceeding.”

The Church’s lawsuit.

Promptly following the landmark designation the Church

brought suit against the Commission in the New York State

Supreme Court, New York County. The suit was brought on the

ground that because of (a) the severely deteriorated condition

of the building, (b) the threat to safety, (c) the total lack of finan-

cial resources of the Church to repair and renovate the building

as required, and (d) the lack of adequate facilities for its wor-

ship and programs, the landmark designation impeded the work

of the Church and was therefore unconstitutional since it

substantially interfered, physically and financially, with the

ability of the Church to carry out its religious programs. The

Commission opposed the suit, not on the ground that the Church

lacked a “hardship,” but rather on the ground that the “hard-

ship” should first be processed by the Commission in its own

administrative “hardship proceeding.”

The litigation was finally decided against the Church by the

New York Court of Appeals by a 4-3 court (Church of St. Paul

and St. Andrew v. Barwick, 67 N.Y.2d 510 (1986) on the basis

that the case would not be “ripe” until the Church brought a

“hardship” proceeding before the Commission and gave the

Commission an opportunity to examine the financial and

physical hardship of the Church in that proceeding, since the

court erroneously asserted the Church was simply renovating

its building, not re-building anew. The lengthy dissenting

opinion, however, argued that saving a small piece of the

Church was not “renovation,” and that the Church’s uncontested

financial and physical hardship meant the landmark designa-

tion was unconstitutional as applied. The Church filed a peti-

tion for certiorari with the U.S. Supreme Court, which was

denied. Cert. denied, 479 U.S. 985 (1986). That litigation

occupied almost five years and, despite help from other

Methodist congregations, it cost the Church approximately

$35,000 in legal fees, further reducing the Church’s small

endowment to less than $100,000.

After the litigation was over, the Church looked again at its

options, in light of its purposes and programs as a religious con-

gregation, its safety problems, the advancing deterioration and

enormous renovation and operational costs of its building, and

its almost total lack of funds. Its membership strongly reaffirmed

the decision to demolish and rebuild in order to carry out its

mission. The Church confirmed with real estate consultants that

although it had no significant funds, the value of its land would

easily support the financing necessary for the demolition of the

existing building and construction of a new building, whether

the work was done by a developer or directly by the Church

acting as its own builder. Hence, the Church’s plan to demolish

and rebuild was wholly feasible.

The Church’s hardship proceeding.

Although the Church had made a final decision to demolish

and rebuild, its ability to complete the planning for its new

building was severely hampered because of uncertainty as to

whether the Commission would confirm the Church’s hardship

and grant the Church a permit to demolish. Architectural and

consultants’ fees for plans, advice and information represented

significant and difficult costs for this congregation with virtually

no funds and no guarantee of being able to go forward, even

after spending those sums.

10

Since the Church’s hardship was manifest — in light of its

huge repair and renovation costs and its lack of funds — the

Church determined that the proper sequence of steps would be

first to file the hardship proceeding with the Commission and

establish its “hardship” under the Landmarks Law in order to

be free to complete the arrangements for demolition and con-

struction. The Church was following the judicial hardship test

established by the New York courts in Matter of Trustees of

Sailors’ Snug Harbor v. Platt, 29 AD2d 376 (1968), and con-

firmed by Lutheran Church v. City of New York, 35 NY2d 121

(1974), and Matter of Society for Ethical Culture v. Spatt, 51

NY2d 449 (1980), by showing that the maintenance of the

building substantially interfered, physically and financially, with

the religious purposes and programs of this Church. As shown

in Sailors’ Snug Harbor, supra., that test was to be applied in

light of the purposes and resources of the Church.

Hence, in November 1988 the Church filed a hardship pro-

ceeding before the Commission, asking for a determination that

a financial and physical hardship existed and requesting a per-

mit to demolish. The Church presented an application of well

over 100 pages, including an architectural/engineering report

showing that the cost of repairs and renovations needed to

preserve the existing building and make it usable would total

over $8,000,000. The Church had only approximately $100,000.

The application also included detailed photographs of the ex-

terior and interior of the church building, with graphic illustra-

tions of the deterioration and deficiencies of the building (in-

cluding safety problems), and also carefully showed the myriad

ways in which the deficiencies of the building impaired the

programs of the Church.

During the course of the hardship proceeding the Commis-

sion itself asked the New York City Department of General

Services to inspect the building and evaluate the Church’s claims

as to repair and renovation costs. The Department of General

Services essentially confirmed the enormity of those costs, iden-

tifying total projected costs of over $6,000,000, which the DGS

report concluded could be expended in three phased periods and

would cover, first, the most urgent costs, second, additional costs

1]

which could be briefly deferred, and third, costs of the building

improvements needed to meet the Church’s program re-

quirements. When contingency and financing costs omitted by

the DGS report are factored into the DGS estimates of total

repair and renovation costs, the total costs calculated by the DGS

report and by the Church’s own architectural/engineering study

are close. And even if the costs were only $6,000,000 rather than

$8,000,000 the Church still had only $100,000.

Nevertheless, the Commission found against the Church in

the hardship proceeding, on the ground that regardless of the

physical condition of the building or the financial condition of

the Church, the Church had not shown that it had exhausted

all alternatives short of demolition. This was based on testimony

by preservationist groups, who urged that those alternatives

might have included the following: renting space to various profit

making and non-profit enterprises to raise money, embarking

on a massive multi-year fund raising campaign aimed at rais-

ing the millions of dollars needed for the renovation, or

demolishing only part of the building and constructing a new

building around the saved structure.

In fact, those very alternatives had been explored by the

Church, as shown in the massive documentation and testimony

before the Commission. In addition, it is obvious that the adop-

tion of these alternatives would force the Church to cancel its

own programs, spend all of its time and energy on a dubious

fund-raising program, and forfeit the value of its property in

order to save part of the building.

The Commission also concluded that it could not evaluate

the hardship imposed on the Church by the physical condition

of the existing building until the Church submitted to the Com-

mission detailed studies of the program facilities which would

be provided the Church in the new building, apparently to see

if these facilities could instead be fitted into the present building.

This remarkable conclusion evidently assumed that the Church

has the option of staying in its current building and repairing

and renovating it, even though the Church has virtually no

funds. Furthermore, as stated before and as the Church showed

12

in the hardship proceeding, the very reason the proceeding was

brought at that time was that the Church lacked the funds

needed to complete its detailed plans for the new building and

that the uncertainty of the Church’s right to demolish under

the Landmarks Law significantly interfered with the Church’s

ability to complete that planning process. The congregation

knew it could not afford to spend more of its meager funds until

it learned whether it could go forward.

The Commission in fact has tried to substitute its own pur-

pose of architectural preservation for the religious purposes for

which these funds were originally given by the donors and to

which the congregation is seeking to apply them. The Commis-

sion has taken this property for its own purposes.

The Commission’s hearing process.

The Commission’s 66 page determination attempts to give the

impression that some form of judicial due process had been

followed, leading to a careful evaluation of the evidence offered

with a final decision by a neutral party. Such a process would

have given the standard protections to the parties involved, par-

ticularly the applicant. Nothing could be further from the truth.

In fact, the hearings consisted simply of the Commission’s

gathering of statements, both documentary and testimonial. The

Church’s opponents were allowed to submit any testimony on

any subject; none of the testimony was sworn; and in many cases

the person submitting the testimony or statement was not even

present. The Commission denied to the Church any right of

cross-examination and allowed into the “record” any statement,

oral or written, without regard to relevancy or truthfulness or

evidentiary basis whatsoever. As a result, the “record” of

materials in opposition to the Church’s application is not a record

in any judicial or even administrative sense but is merely an ag-

gregation of letters, statements, studies, memoranda, and other

materials (many of which are untrue and have no factual basis)

submitted by the Municipal Art Society, the Landmarks Con-

servancy, and other preservationist organizations and their

supporters. Those unsupported statements were then generously

paraphrased or summarized by the Commission in creating the

13

so-called record of the proceedings incorporated into the

Commission’s formal determination. Yet this so-called record

could never be a reliable basis either for a court determination

or for an administrative determination which could be sustained

on court review.

For example, opposing witnesses simply asserted that the

Church could relieve its lack of funds by going out and raising

money or selling its air rights. The witnesses provided no basis

for these assertions other than vague speculation. With no cross

examination permitted, that untested material is reported in the

Commission’s determination as though it was “evidence” sup-

porting the Commission’s determination.

That speculetion and opinion was then used by the Commis-

sion in its final determination. For example, the determination

stated the Commission had “been informed” of the Church’s

“refusal to explore community offers to raise significant funding

on behalf of the Church.” During the hearing witnesses

speculated that the community might be able to raise funds for

the Church, even though the Church had no money to rebuild.

The Church was not allowed to cross examine those witnesses,

and the claim that the community could raise anywhere near

the funds needed by the Church never rose beyond the level of

sheer wishful thinking.

Similarly, the determination asserts that the Commission “had

been informed” of the Church’s “refusal to consider proposals

for development that would require only partial demolition.”

By denying the Church the right of cross examination, the Com-

mission again barred the Church from revealing that the

witnesses who alluded to the possibility of partial demolition

were again simply speculating or acting in their own financial

interests to the detriment of the Church. One proposal discussed

at length in the determination would have had the effect of tak-

ing 85% of the value of its property away from the Church.

Since the Commission grants full latitude to witnesses regard-

ing the quality, character and source of evidence asserted — i.,

hearsay, even opinion and speculation is permitted — the right

14

of cross examination becomes a vital part of the process. Without

cross examination, the Commission has no basis whatever on

which to evaluate the evidence. The need for cross examination

is underlined when one realizes that many of the witnesses were

from preservationist groups whose goal, we submit, was — as

was the Commission’s — to preserve the Church’s building rather

than to deal with the needs and purposes of the Church.

The Commission’s absence of neutrality.

The Landmarks Preservation Commission’s stated goal is to

preserve buildings. Nevertheless in a “hardship” proceeding deep-

ly affecting the life of a church and the multitude of people which

this Church serves through its programs, surely the Church was

entitled to have the judge of the facts — i.e, the Commission

— manifest neutrality and a fair balancing of interests. In reality

the Commission was anything but neutral. Instead it functioned

as the strong advocate of preservation at the same time it was

performing the formal role of judge and jury in the hardship

proceeding. Under the Landmarks Law, the question of “hard-

ship” concerned this Church and its own needs and purposes.

The hardship proceeding, however, turned into nothing more

than a town meeting chaired by the Commission and devoted

to the question of how to “save” the Church’s building regardless

of whether the Church could maintain or function in the

building, and the Church was pejoratively labeled by Commis-

siorers and their supporters a “developer.” As one Commissioner

stated in the hardship hearing: “I suppose we could say it is the

Developmentalist versus the Preservationist.”

There was absolutely no interest on the part of the Commis-

sion and the preservationists as to how the Church’s building

interfered with the purposes and programs of the Church. They

virtually ignored the massive amount of the Church’s testimony

and that of its supporters as to the damage being done to the

Church’s religious life and programs for the poor, the homeless,

etc. There was indeed no balancing of interests whatsoever.

The Commission demonstrated constant concern with only the

building as though it were the most important aspect of the

Church and the Church, accordingly, had to justify any change

15

in the building whatsoever. There was never any consideration

of the Church’s purposes and no recognition by the Commis-

sion of its burden of justifying interference with those purposes.

The Commission, throughout the proceedings, attempted to

present itself as the neutral judge, with the “public” on one side,

the Church on the other side, the Commission merely attempting

to judge between them. In fact, the opponents were not the

general public but were primarily avowed preservationist groups

with close ties to the Commission. As the Church showed at the

hearings, there was great support for the Church among the

general public, which included the religious community and the

large numbers of people the Church serves through its programs.

The Church’s hardship.

Only the most tortured reasoning permits the conclusion that

the Church did not prove its hardship. Indeed, as noted above,

the New York City Department of General Services found approxi-

mately $6,000,000 in needed renovation costs, and the Church

had only $100,000. Those plain facts constitute the hardship.

Effect on the Church of the Commission’s actions.

By insisting on landmarking the Church’s decayed building,

by opposing the Church’s efforts in the courts to have the land-

mark designation lifted, and by ignoring the Church’s proof of

hardship in the recently completed hardship proceeding, the

Commission has frozen the Church into its present building,

controlling the Church’s mission by effectively forcing the

Church to spend its funds and resources to keep up the decayed

structure. The Commission has thereby substantially interfered

with the Church’s carrying out its religious and social programs

and purposes for which it was created.

Central to the decision by the court of appeals in the pro-

ceedings herein below was the proposition that landmarks

regulation is acceptable so long as it does not interfere with the

historical use of the property. The court of appeals indicated

16

that the Landmarks Law may “freeze” a church’s property and

usage so long as the church can continue its present activities.

St. Bartholomew's Church v. City of New York, 914 F.2d at 356.

The Landmarks Preservation Commission has consistently

followed this thinking in its dealings with the Church of St. Paul

and St. Andrew.

One must look at the history of Church of St. Paul and St.

Andrew to see what this “freezing” principle means to it. This

has been a church devoted to mission and service to its congrega-

tion and to the needy of the community about it. Whenever those

needs have changed, the Church of St. Paul and St. Andrew has

changed. This is, in fact, the third building that this congregation

has occupied. The irony is that if the Landmarks Law had been

in effect a long time ago, this congregation might well have been

frozen into a different and’ smaller building and the current

building would never have come into being. The massive prog-

rams that are being carried on by this Church for the hungry, the

destitute and the homeless ‘might likewise never have come into

being. The Church would have been frozen into the outdated

usage of an older building and an outdated ministry. Churches

have always been able to express their faith through their works.

To freeze churches into doing only what they have done in the

past completely blocks their new expressions of that faith.

One must look at the role of the churches and synagogues

in our cities today. They are among the key providers of help

to the needy. This is a main part of their religion. The decision

of the court of appeals below states “No one seriously contends

that the Landmarks Law interferes with substantive religious

views.” 914 F.2d at 354. In forcing the Church of St. Paul and

St. Andrew and others in the religious community to abandon

those programs which they believe they are called by their faith

to do, the Landmarks Law is, in fact, dictating a new religious

basis to them. The change of buildings for the Church of St.

Paul and St. Andrew is not only an expression of its religious

faith but the direct continuation of it. The decision of the court

of appeals below states that Supreme Court decisions indicate

that “government may not coerce an individual to adopt a cer-

tain belief . . .” 914 F.2d at 354. Forcing the Church of

17

St. Paul and St. Andrew and others in the religious communi-

ty to change their purposes and, instead, expend their time,

energies and funds on fundraising and caring for buildings to

the detriment of what they feel called upon to do with those

resources, is indeed forcing them to adopt a belief in practice

if not in fact.

The decision below also states: “The central question in iden-

tifying an unconstitutional burden is whether the claimant has

been denied the practice of his religion or coerced in the nature

of those practices.” 914 F.2d at 355. To force the Church of St.

Paul and St. Andrew to adopt the purposes of architectural

preservation against its will and belief is certainly coercing it.

To force that Church to take all of the value of its property and

commit it instead to architectural preservation and ignore the

massive needs of the society around it is forcing that Church

to act contrary to its religious beliefs.

The Penn Central decision, supra., discusses percentage of pro-

fits and a reasonable return on landmarked property. But the

Church of St. Paul and St. Andrew is not a commercial venture

seeking profits and a reasonable monetary return. Ironically,

that is exactly what the preservationists would have this Church

become. They have consistently urged the Church to make

money by renting out its space to theaters, artists, branch

libraries, discotheques, doctors, accountants, etc. This would,

of course, displace and terminate all of the Church’s programs

for its congregation and the needy whom it serves. It should

be noted that rentals, profits, and reasonable monetary returns

have never been a part of the “historic use” of this property.

For the Church of St. Paul and St. Andrew, the “return” on

the Church’s property rests on how much the Church can do

for its congregation and the many people that it helps. Funds

have been given to this Church through the decades for the good

works that it does for others. This is the “historic use” of this

Church’s property and resources, not the maintenance of a

building. To deprive this Church of its resources to help others

is to take the value of its property for the purposes of others.

In the case of the Church of St. Paul and St. Andrew, this

littl

18

property holds out the possibility of enlarged feeding programs,

shelters for the homeless, affordable housing, drug rehabilita-

tion and education programs, AIDS programs, and countless

other programs that this Church has been wanting to do for

well over a decade and has been prevented from doing by the

preservationists.

Had this Church not been landmarked, it could have brought

in substantial funds over the last decade for its religious pur-

poses and mission. To say that all this Church will ever have

the right to do is just what it was doing in 1980 is to take away

all of those programs and possibilities. This, in fact robs the

Church of the bulk of the value of its property and thereby most

of the possibilities for carrying out its faith and mission. Those

elements are inextricably bound together.

The Church of St. Paul and St. Andrew is now left with the

choice of going to court again (with virtually no funds to finance

that effort), or re-applying to the Commission with a new ap-

plication, including all of the legal and professional fees

necessary. The prior hardship proceeding covered almost six

months (November 1988 - May 1989). There were three public

hearings, and five additional Commission meetings dealing with

the Church’s application. Legal and architectural fees for the

Church amounted to approximately $75,000 — a tremendous

“hardship” for a virtually destitute religious institution. In ad-

dition, the Commission has yet to tell the Church what is ac-

ceptable to the Commission or to provide clear procedures or

guidelines, leaving the prospect that the Church could be turned

down on repeated applications. There is every expectation that

the opponents will similarly do everything possible to block any

new application by the Church, to prolong the proceeding, and

to escalate the costs and thereby deplete the Church’s resources

and determination, forcing it to give up the fight and take

whatever the Commission will allow. The Church obviously faces

vast additional expense in further proceedings before the Com-

mission and very possibly in the courts.

Entanglement.

In examining this Church’s landmark proceedings it becomes

clear that the purpose of the Commission was to get into the

decision-making process of the Church of St. Paul and St. An-

drew in order to compel the Church to devote its resources to the

maintenance of its building “for the public good.” As one Com-

missioner stated in the hardship hearings of this Church, “We

see landmarks as a public good.” The Commission did not con-

sider the Church’s hardship but focused solely on preserving the

building. It now requires the Church to spend considerably more

money in preparing plans for its new facilities and returning to

the Commission with a new application. The Commission says

| it will then perform a programmatic evaluation of those new

f facilities. It has also suggested that the Church carry out studies

on fund raising for the millions of dollars needed, all of which

only add more time and expense for the Church.

That insistence on programmatic evaluation deeply and

profoundly entangles the Commission in the religious purposes

and programs of the Church. By conditioning its permit to

demolish on its determination as to the need and arrangement

of the Church’s programmatic facilities, the Commission

effectively exercises control over what those facilities will be.

Similarly, by requiring that the Church first commit itself to a

| massive, multi-year, multi-million dollar fund-raising program

before the Commission will acknowledge that the Church’s lack

of funds is a major factor in its hardship, the Commission is

seeking to determine how the time, energies and resources of the

congregation will be spent. By insisting that the Church consider

renting out substantial parts of its space or selling its air rights

(for which there are no known buyers), the Commission is seeking

to control the Church’s finances and force funds to be used for

the Commission’s purposes.

The Commission’s control of the Church has now become far

more pervasive with the Commission’s rejection of the Church's

hardship application and with the conditions imposed in that

rejection. The Commission has deepened its entanglement in the

Church’s religious purposes, programs and finances.

ieee il

20

CONCLUSION

The experience of the Church of St. Paul and St. Andrew at

the hands of the Commission reflects a policy of the Commis-

sion that a religious institution and its mission may be “frozen”

into a landmarked structure in order to preserve the structure

regardless of the detrimental impact on the religious institution.

The Commission has substantially interfered with the Church

of St. Paul and St. Andrew’s carrying out its religious and mis-

sion programs and purposes for which it was created and has

sought to substitute other purposes. The Commission has taken

this Church’s property for its own purposes of architectural

preservation. In so doing, it has become entangled in the religious

purposes and programs of the Church of St. Paul and St. Andrew.

It is submitted that this unyielding preservation policy has been

similarly applied to St. Bartholomew’s Church, the petitioner.

herein, with the same results.

For these reasons, the Church of St. Paul and St. Andrew urges

that the petition for certiorari be granted.

Dated: January 31, 1991

ELLIS, STRINGFELLOW & PATTON

Attorneys for Church of St. Paul

and St. Andrew

51 East 42nd Street

New York, New York 10017

212-867-0180

Of counsel:

FRANK PATTON, JR.