Decision Summary HPA No. 08-141
- HPA Number
- Building Name
Third Church Christ Scientist
- 900 16th St. NW
- Date of Order
HPA Number: 08-141
Case Name: Third Church of Christ, Scientist, Washington, D.C.
Location of Property: 900 16th St., NW, Square 185, Lot 41
Date of Decision: May 12, 2009
Type of Case/Type of Permit Sought: Demolition
Disposition: Granted, Subject to Condition that Applicant Obtain a Building Permit to Construct a New Church
Subject Matter(s): Mayor’s Agent – Procedural; Mayor’s Agent – General; Unreasonable Economic Hardship; First Amendment; Demolition; Landmarks
Summary of Decision:
In November 2007, the Third Church of Christ, Scientist (“Church” or “Applicant”) filed an application to demolish its church building located at 900 16th St., NW. In December 2007, the Historic Preservation Review Board (“HPRB”) designated the parcel, which included the church, an office building, and the connecting plaza, a District of Columbia Historic Landmark under the Historic Landmark and Historic District Protection Act (the “Act”).
In August 2008, the Church requested a hearing under Section 5(c) of the Act, initially claiming that demolition of the church was “necessary in the public interest.” The Applicant later claimed that denial of the demolition permit would cause “unreasonable economic hardship,” which under the Act means that “the failure to issue a permit would amount to a taking of the owner’s property.” At public hearing, the Applicant ultimately abandoned its claim that demolition was necessary in the public interest, leaving only the unreasonable economic hardship argument.
Applicant also claimed that the Mayor’s Agent was required to consider alleged violations of the First Amendment of the U.S. Constitution, as well as the Religious Freedom Restoration Act (42. U.S.C. § 2000bb) and the Religious Land Use and Institutionalized Persons Act (42. U.S.C. § 2000cc). The Mayor’s Agent ultimately ruled that it was beyond her authority to consider such claims. (In a later case, however, World Mission Society, Inc., HPA No. 12-263 (2012), the Mayor’s Agent ruled that the Mayor’s Agent and not the Historic Preservation Review Board must decide RLUIPA claims.)
Party status was requested by and granted to the District of Columbia Preservation League (“DCPL”) and the Committee of 100 for the Federal City (“Committee of 100”). Both DCPL and Committee of 100 opposed the application for demolition. Advisory Neighborhood Commission 2B (“ANC”) submitted a letter expressing its support for the demolition application on “both hardship and federal civil rights grounds.”
The Mayor’s Agent granted the demolition permit, subject to the condition that the Applicant first obtain HPRB review and a building permit to construct a new church on the existing church parcel or an alternative one (located on the same property).
Mayor’s Agent – Procedural:
DCPL requested that the Mayor’s Agent who was Harriet Tregoning, the Director of the Office of Planning, recuse herself as the hearing officer because of an “organizational and personal conflict of interest.” DCPL pointed to the fact that the administration had formally taken a position in favor of the Church, as evidenced by a letter from the Deputy Mayor for Planning and Economic Development to the HPRB in opposition to the historic landmark designation. Because the Mayor’s Agent is also the Director of the Office of Planning and reports to the Mayor through the Deputy Mayor for Planning and Economic Development, DCPL argued that it would be improper for the Mayor’s Agent to exercise review authority because of the inherent conflict between serving the Mayor and Deputy Mayor, and rendering an impartial decision.
The Mayor’s Agent rejected the request to recuse herself. Here, there was no contention that the Mayor’s Agent was personally biased, that the public hearing was not conducted in accordance with applicable statutory requirements, or that the decision was not based on the record. The Mayor’s Agent further held that her status as an employee of the District of Columbia – even a political appointee of the Mayor – was not alone reason to disqualify her. Statements made by the Deputy Mayor could not be attributed to her and did not amount to any showing of bias by her. [Editor’s Note: Not long after this case and The Heritage Foundation, 227 PA Ave. SE, HPA No. 08-437 (2009) where Harriet Tragoning also sat as the Mayor’s Agent, she turned over the Mayor’s Agent Hearing Officer duties to Peter Byrne, Professor of Law at Georgetown University Law Center.
The Mayor’s Agent is required by D.C. Official Code § 1.309(10) to give “great weight” to the issues and concerns of the affected Advisory Neighborhood Commission (“ANC”). Here, ANC 2B supported the undue economic hardship and First Amendment claims of the Church. The Mayor’s Agent agreed with the undue economic considerations, and noted that it had no authority to rule on the First Amendment claims.
Unreasonable Economic Hardship:
The Church owns the building it wishes to demolish, but does not own the land on which the building sits. The Church argued therefore that it has no collateral by which it can finance the extraordinary repairs that are needed to fix the building, nor do its members wish to pay for such measures. According to the Mayor’s Agent, the Church aces significant issues related to necessary repairs, improvements needed to continue its viable use as a church, and ongoing maintenance and building operation. These repairs would not be minimal or inexpensive. The factual findings extensively detailed the needed repairs, in particular repairs to fix structural cracking of and water infiltration into the concrete structure of the building. In addition, the HVAC system is expensive as it requires constant operation to heat and cool building, and it would be difficult to install a more efficient system because of the lack of insulation in the building. The Church also faces ever increasing costs in the face of stagnant revenues. The Church estimates that its reserves will be depleted in eight years or less.
In addition, the Mayor’s Agent found that the Church, according to its mission, cannot simply walk away. “Its location is its mission. To leave the area it has served since 1918 would be tantamount to its destruction. Yet to remain in the present building would have the same result.”
Lastly, the Mayor’s Agent found that the parties in opposition “did not present credible evidence that the building can be adaptively reused, either in a manner complementary to or instead of the Applicant’s church use.”
Thus, the Mayor’s Agent concluded that (1) the Church cannot increase revenues to the extent needed to meet all of its operational, maintenance, and repair demands; (2) the Church faces depletion of its reserves in less than eight years; and (3) adapting the building would be too expensive for the Church, as it does not have the financial wherewithal to make improvements (or, alternatively, to relocate to another downtown location).
The Mayor’s Agent held that “the program or institutional needs of a public service organization are relevant factors in determining whether a property owner faces an extraordinary or exceptional condition that would justify a variance.” The Mayor’s Agent relied on precedent from Monaco v. District of Columbia Bd. of Zoning Adjustment, 407 A.2d 1091 (D.C. 1979). Here, the “unique relationship between the Church and its location” sets this case apart. Therefore, the Church need not, for example, prove efforts to sell its building in order to relocate, because relocation is not a viable option. Accordingly, the Mayor’s Agent approved the request for a demolition permit, but subject to a condition tied to the Church’s location:
[A]pproval of the Applicant’s request for a demolition permit must be conditioned so as to ensure that the landmarked building will not be demolished except as necessary for the Applicant to achieve its stated need, its continued presence in a new church building at its current location . . . . Were it not for the fact that the Third Church is by its history and mission tied to its present downtown location, this clearance would not have been granted. (emphasis added)
[Ed Note: there is some inconsistency here since the Church was originally located in a number of other downtown locations (HPA No. 08-141, p.8).]
The Mayor’s Agent conditioned the demolition clearance because Third Church itself does not own the land on which a church would be built. The only way to ensure a future, new church building was to condition the demolition clearance on the issuance of a building permit for a new church.
First Amendment (Religious Freedom):
Applicant also claimed that the Mayor’s Agent was required to consider alleged violations of the First Amendment of the U.S. Constitution, as well as the Religious Freedom Restoration Act (42. U.S.C. § 2000bb) and the Religious Land Use and Institutionalized Persons Act (42. U.S.C. § 2000cc). The Church claimed that it had an absolute right to destroy an historic landmark if its continued existence imposed a substantial burden on the religious exercise of the owner.
Relying on District of Columbia Court of Appeals precedent, the Mayor’s Agent held that it was not within her authority to consider such claims. According to the Mayor’s Agent, her authority is to “‘evaluate a demolition application in accordance with the Preservation Act, and nothing more’” (quoting D.C. Preservation League v. Dep’t of Consumer and Regulatory Affairs, 646 A.2d 984, 990 (D.C. 1994)). Thus, the Mayor’s Agent ruled that consideration of constitutional claims is beyond her authority. As noted above, the Mayor’s Agent in a subsequent decision, HPA No. 12-263, determined that the Mayor’s Agent should properly consider RLUIPA claims.
In response to the circumstances of this case, DC Council Members Marion Barry and Jack Evans proposed legislation that would essentially prevent the HPRB from designating the property owned and used by a religious institution an historic landmark or a contributing building to an historic landmark if the religious institution submits a religious burden statement objecting to such designation because it would impose “substantial burden on that institution’s religious exercise.” See Castro, Melissa, “Christian Science Church Sues D.C. over Landmark Designation,” Washington Business Journal (Aug. 7, 2008).
In August 2008, the Church filed a Complaint in the U.S. District Court for the District of Columbia challenging the HPRB historic landmark designation under the previously cited religious freedom grounds. The District of Columbia subsequently moved to dismiss the Complaint on grounds that the Mayor’s Agent had yet to rule on the Church’s challenge to the HPRB ruling, and that the religious freedom claims fail as a matter of law. Oral argument was held in April 2009 before Judge James Robinson. The Court ultimately decided that, in light of the fact that the Mayor’s Agent’s decision was due within the next month, the Court would deny the motion to dismiss without further order, and the Court would “wait and see what happens next.”
On October 25, 2012, HPRB approved the concept design of a new development for the site. The Church has been torn down and will be replaced with a new church designed by Robert A.M. Stern.
For addition context on First Amendment law and historic preservation, see
Stockton, Bryan, “Preserving Sacred Places: Free Exercise and Historic Preservation in the Context of Third Church of Christ, Scientist, Washington, DC”, Georgetown Law Historic Preservation Papers Series (2008), Paper 29, available at http://scholarship.law.georgetown.edu/hpps_papers/29.
Hill, Susan Corts, "Is an Exemption from Historic Preservation Designation for Religious Institutions Needed in the District of Columbia?", Georgetown Law Historic Preservation Papers Series (2008), Paper 27, available at http://scholarship.law.georgetown.edu/hpps_papers/27.