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State vs. Church: March of the Preservation Police

Church members described the chill, the darkness and the gloom that bad design has brought to their spiritual lives. Advocates for the Christian Science Church on 16th Street NW, just two blocks from the White House, told of the extraordinary cost involved in maintaining a building that is too big, too dank and a long way from the religious ideals of their denomination. Lawyers warned the city that it was risking court action if it trampled the rights of a religious community. One member of the church broke down in tears as she told of how the concrete bunker that serves as her church's home detracts from the congregation's ability to serve the homeless and the rest of its mission.

But the District's preservation police, the Historic Preservation Review Board, doesn't care about any of that. It voted 7-0 yesterday to force the Third Church of Christ, Scientist, to keep its crumbling, 36-year-old home, which will now be an official D.C. landmark--protected from demolition or alteration by the city's law.

The church has sought for nearly two decades to avoid the landmark designation, which was requested by a group of academics and architects who consider the building, one of Washington's ugliest, to be a historically important artifact in the history of Brutalism--the school of architecture that brought us such gems as Metro headquarters, the FBI building, the University of the District of Columbia, and the Forrestal and HUD government office buildings.

Two federal laws passed during the Clinton administration seek to protect churches from the kind of extreme preservation mania that the District specializes in. "Church property is often, as is the case here, an expression of a church's theology and religious mission," says Roger Severino, a lawyer at the Becket Fund for Religious Liberty, an advocacy group that argued on the Christian Scientists' side. Preservation rules may result in financial hardship for a church, inhibiting the congregation's religious expression, Severino says.

But when Advisory Neighborhood Commissioner Mike Silverstein of the Dupont Circle commission tried to bring up that topic at yesterday's preservation board hearing, board chairman Tersh Boasberg interrupted, saying, "We're not here to discuss the First Amendment. We're here to discuss whether the church meets the criteria" set out in the city's landmarking law.

So now the church is stuck at a facility that it does not want and cannot afford. The building, designed as a church, cannot accommodate any other purpose, and it's hardly likely that another church would want a structure that is so antagonistic to human spirituality. The developer who owns the land told the board that he wants to build a new church for the Christian Scientists that would meet their needs, conform to Pierre L'Enfant's plan for the monumental core of the city, and work in concert with an office development his company plans for the adjacent lot at 16th and K streets.

But the preservation board wasn't having any of that. It wants the city frozen in amber, regardless of the capacity of buildings to serve the functions for which they were constructed and regardless of the desires of those who own and use those buildings.

The church "is in a league of its own," said George Washington University professor of American civilization Richard Longstreth, who spoke for the architects seeking the landmark status. It is a "distinctive and original work," and he went on to name a long, long list of architects who believe the church has historical importance and artistic merit.

That was all the board had to hear. The fact that the building's uninsulated concrete is deteriorating didn't matter. Nor did the fact that the building sits beside "an empty and windswept plaza" and presents "a blank, soulless wall" to 16th Street, as church member David Alan Grier, a GW historian, put it. Nor did the contention by church member Amy Meyers that "This building is valuable only inasmuch as it serves its purpose," or her statement that "As Christian Scientists, we don't place much emphasis on church buildings."

The proponents of landmarking had no response to any of these arguments. They merely repeated their view that the only thing that matters is whether the building is an important example of some school of design. "Their rationale boils down to 'we're smarter than you,'" Silverstein said.

To protect some esoteric notion of academic value, the city's preservation board has now sentenced the District's taxpayers to years of expensive legal battle, for surely this landmarking will lead to a lawsuit and surely the city will eventually lose. For better or worse, the laws of this country fiercely protect the separation of church and state, and those laws make quite clear that churches, not governments, get to decide in which building people shall worship and how those congregations get to spend their money. And the Christian Scientists do not want to spend their money shoring up a crumbling example of a failed and arrogant architectural experiment.


By Marc Fisher |  December 7, 2007; 6:07 AM ET
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Comments

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The Historic Preservation Review Board needs to wake up! This is only one of many out of date and ugly buildings that will now occupy precious city space that will remain underutilized. Another job well done, HPRB!

Posted by: Andy | December 7, 2007 8:05 AM

Did I understand that right?

Did the Advisory Neighborhood Commissioner attempt to bring up the applicable law that exempted churches and the Board Chairman basically said "I don't care about that law"?

Is that what just happened?

Are these people elected or appointed? If appointed, by whom?

Posted by: SoMD | December 7, 2007 8:28 AM

I frankly would not mind if all these horrible buildings were destroyed and Brutalism was relegated to old photographs and architectural plans. You know what it's like to work in the HUD building? It's brutal! Just how they designed it! I'm not sure what point there is to preserving a failed aesthetic approach.

Posted by: Lindemann | December 7, 2007 8:38 AM

I have an idea. There's a group of architectural historians that want to see the building preserved, right? Well, let *them* buy the building and maintain it.

Posted by: anonymous reader | December 7, 2007 9:59 AM

Why is it "ugly"? I happen to think it's a very interesting looking structure whever I've gone past it. Too much of DC is already beyond bland downtown. At least a Brudalist building atempts to look liek something other than a generic office building that could just as easlit be Reston or Columbia.

That said, if the Preservation Board wants to do this, there should be some kind of mechanism set up to assist the agreived property owner in maintaining the structure and in getting betetr use out of it.

Posted by: EricS | December 7, 2007 10:17 AM

The HUD building is NOT Brutalist, it's modernist. It's a beautiful building to work near and the flying saucers out front remind me every day about my 1960s childhood fascination with space. I stare at that building every day and it's flat out gorgeous.

Posted by: Anonymous | December 7, 2007 10:19 AM

Look, a word in defense of the Board, if you please. I agree that the church is an eyesore and I have to walk past it every day. And it's too bad that the church members want to change it and can't. In fact, I hope they file a federal lawsuit and I hope that they win it.

But court is the proper forum for their views. Not the Board's hearing. The Board has a mandate and a standard that it is bound to apply in making a decision. It's charged with preserving historically significant buildings. That's what it does and it quite properly limited its deliberation to that issue alone.

Wanting it to take a broader view is a shortcut to how the system was set up. It's also whining. If you don't like the way mandate the Board has and the factors it takes into account (or doesn't), then change the system. Know, however, that agencies like the Board are set up the way that they are precisely in order to resist the often-overwhelming influence of popular trends and desires. What is "pretty" or popular today won't be tomorrow - the ugliness of the Church itself is proof of that because when it was built, it was considered aesthetically pleasing.

If you don't like that, then change it. Don't complain about it.

Again, I hope the church members file and win their lawsuit. But if they win, it will be because the Board fulfilled its mandate set by DC, and a court found that DC was acting outside its power in this instance to restrict the activities of the church. It won't be because the Board should have taken current popular opinion or the desires of the current occupants into account in fulfilling its mandate.

Posted by: DC | December 7, 2007 10:34 AM

SoMD: I don't like the building either, but don't bust on Boasberg for not taking on the first amendment issue in a hearing about architectural significance. That's not the task of the Historic Preservation Review Board, nor would its members--experts in architecture, not constitutional law--be qualified to make a judgment on the issue. They were dead wrong in their assessment, but they were wrong about the architecture.

Posted by: EM | December 7, 2007 10:36 AM

I don't understand how ANY government official has the nerve to publicly announce that they are not bound by the First Amendment. The constitution applies to bureaucrats too. Don't they have lawyers over there?

Posted by: Anonymous | December 7, 2007 10:45 AM

More selective reporting of the facts, Marc.

Why don't you mention that the Historic Preservation Office read into the record the Third Church's own brochure about the church that remarked on the beauty of the sunlit interior and other architectural features of the building?

Posted by: peter | December 7, 2007 10:48 AM

Wait a minute!

If this board knowingly performed an action that is in violation of both a first amendment and a federal law, don't they (i.e. the board members, individually) have some level of personal liability?

Posted by: mikes | December 7, 2007 10:52 AM

Preservation Nazis on the march! If they could work with the church to design a new building that would preserve the character of that neighborhood without then both could fulfill their missions.

Posted by: Amy | December 7, 2007 10:52 AM

DC: You just expressed the all-too familiar disregard for common sense and the law in this city (and country, for that matter). You make it sound so easy. The church cannot afford to maintain the building. Now you expect them to pay for a federal lawsuit to overturn a decision that shouldn't have even happened in the first place, had common sense (and the law) prevailed? And you think that the board is not subject to the federal laws that protect churches from the decision they just made? You even state in your final paragraph that you hope the court finds the city acted outside its power. But you are essentially saying it SHOULD HAVE acted outside its power in the first place, and the only way to stop it is an expensive lawsuit? Absurd!

PS--Your disdain for "complaining about it" rather than "changing it" is also offensive. For the general public, which is not sitting on the board or the city council or in Congress, "complaining" is how we make change. Picketing, protest marches, letters to the editor, etc. are all mechanisms for change, and I find it ironic that you are complaining about other people's complaints rather than changing them!

Posted by: Brian | December 7, 2007 10:54 AM

There is some confusion here due to Marc's very selective presentation of facts.

The HPRB can only rule on whether or not a building is a landmark under DC's criteria. A court would have to determine whether or not landmarking abridges a First Amendment right. The vast body of rulings would say that it is not, although of course each case has unique elements.

Posted by: peter | December 7, 2007 10:58 AM

oooh I have an idea! The church should rent it out as a halfway house for John Hinckley and his ilk. Or better yet... turn it into a mosque for Wahabist muslims. Considering the location, I bet they could find a renter that would get the feds' attention.

Posted by: Amy | December 7, 2007 10:58 AM

As a former New Yorker who still mourns the destruction of Penn Station -- which the New York Times called "a monumental act of vandalism" and which sparked the modern preservation movement -- I am deeply troubled by the dilemma that mid-20th Century architecture is posing.

As these buildings age, more and more of them will be the subject of landmarking debates. They are uniquely unloved; no other era of architecture has been so quickly and thoroughly repudiated (as the wave of refacings along K Street demonstrates). The dilemma, which no one foresaw back when landmarking's focus was the salvation of well-loved buildings like Grand Central and the Willard Hotel, is whether we want to save these buildings as architectural archivists, or because we want to save those structures that we believe enhance urban life (or which have genuine historical connections beyond their architecture).

The irony is that landmarking's beginnings lay in resistance to having classical and Beaux Arts architectural treasures replaced by the very Brutalist monstrosities that are now themselves proposed for landmarking. It is as if the modern architects, who disdained classicism and embraced Brutalism more than the public ever did, are getting their revenge.

While the debate over the Christian Science church is complicated by the First Amendment, that should not ultimately decide the matter. After all, in the unlikely event the Catholic Church wanted one day to tear down St. Patrick's on Fifth Avenue, do we really want the Landmarks Commission to be powerless to stop it?

So what legal and aesthetic framework should govern our approach to Brutalism? Do we save a few buildings as exemplars? If the most conspicuously ugly and ill-suited building is the best exemplar of the style, what then? And if we allow these landmarks, hideous as they may be, to be destroyed, will we weaken the landmarks law's ability to save other, more worthy, structures?

I don't have an easy answer for these questions. But on a personal level, I would not be unhappy to see the Christian Science church leveled IF something better were put in its place.

Posted by: Meridian | December 7, 2007 11:13 AM

Does any Architect have the right to request their work be marked "historical" without the property's owner's knowledge or consent? And the people who make the final decision are other Architects? The actual owner of the property's opinion doesnt matter? What a great idea! I'll nominate yours and you vote for mine then no one will ever be allowed to replace our Architectural works of art. Who cares if the buildings are falling down and the owners can't use them. What's a few more vacant buildings compared to us being memorialized as nationally recognized Architects! Its genius!

Posted by: Architects R Us | December 7, 2007 11:17 AM

Meridian, I have never read such an intelligent and cogent expression of the central dillema and irony that we're facing here. Thank you.

Posted by: Anon. | December 7, 2007 11:23 AM

Marc did not bother reporting this, but what is proposed to replace the Church complex is an office building. It is proposed that the church would have worship space within the office building, as I understand it.I think that the church sold the land to a developer last year but retains the buildings.

Posted by: peter | December 7, 2007 11:29 AM

Peter, do you have any evidence for your claim or are you repeating rumors?

Posted by: Anonymous | December 7, 2007 11:43 AM

Mr. Fischer has again blown his legitimate concerns about preservation out of all proportion by hyperbole and character slurs. The First Amendment in no way protects chuches from designation as historic, although a few state statutes do. Most courts have construed the federal statutes Fischer mentions as not increasing the protection afforded churches beyond the First Amendment. The real questions will arise when someone presents a plan for redeveloping the site, and the DC Board indicated yesterday a willingness to bend over backward to permit some valuable alterations. It's hard to see how the Boartd could have done anything other than what it did yesterday under the terms of the DC statute. I agree the church is ugly as sin.

Posted by: Peter Byrne | December 7, 2007 11:57 AM

I attended a meeting on this and what I recall is that the church has sold the land and the former Christian Science Monitor Building to a developer called ICG. The church retains ownership of the church building itself and leases back the land underneath.

Posted by: Peter | December 7, 2007 12:06 PM

Brian,

What I wrote is not really that easy to misunderstand, but somehow you've managed. Nor is it different than the reactions of most of the posters after me.

I did not say that it "should have" acted outside its power. The point is, only a court (not the Board) can determine a First Amendment question. A bunch of architects simply aren't competent to do that. My hope is that the system will work the way it's supposed to - a system of checks and balances - and the judicial branch will judge whether the city overstepped its executive authority in setting up the Board the way it did, with the mandate it did.

You seem to prefer anarchy, with any decision-making body putting on any hats it wants to get to a result that most of the people would like to see at the given time.

Fight the Power!

Posted by: DC | December 7, 2007 12:08 PM

"The building, designed as a church, cannot accommodate any other purpose"

You don't believe that statement and neither do we.

Posted by: Me | December 7, 2007 12:13 PM

The Washington Post reported that ICG had purchased the Third Church site on May 7, 2007. According to the article the church building itself was included in the deal, although I have since been told that this was not the case.

Posted by: peter | December 7, 2007 12:13 PM

The building is ugly as sin, and the it provides negative vibrancy on 16th Street.

However, the law is very clear on how these applications are weighed. Further, the Church will not have to file a federal suit.

An appeal to the Mayor's Agent based on hardship and first amendment issues will resolve this in their favor fairly expediently.

Posted by: Ward 3 Resident | December 7, 2007 12:19 PM

Brian,

What if the HPRB was in the habit of only responding to the complaints of white building owners in their landmarking decisions? Could the HPRB hide behind its completely subjective "architectural judgment" rationale? No, because we are a country of laws not men. The same principle applies here. For too long arbitrary decisions of bureacrats have trampled on religious freedom--which is precisely why Congress stepped in to end it.

Posted by: Concerned | December 7, 2007 12:22 PM

Sorry, my comment was in response to DC, not Brian.

Posted by: Concerned | December 7, 2007 12:23 PM

Sorry, my comment was in response to DC, not Brian.

Posted by: Concerned | December 7, 2007 12:26 PM

Concerned,

Thanks for making my point for me. The answer to your hypothetical is, the courts would step in (if someone asked) and rule that the Board violated the law (if a law is violated).

Posted by: DC | December 7, 2007 12:58 PM

"You can always sue" is small comfort for those whose rights have been violated but can't afford (money, time, or emotional reserves) a multi-year court fight. What about public officials that swear to "uphold" the Constitution? Don't they have a duty to dust off the Constitution every now and again?

Posted by: Concerned | December 7, 2007 3:38 PM

After all, in the unlikely event the Catholic Church wanted one day to tear down St. Patrick's on Fifth Avenue, do we really want the Landmarks Commission to be powerless to stop it?

YES!!!!! Unles they are willing to pay a fair market value (rather tan deep discount eminent domain) to buy the property. Denying private property owners the ability to tear down and replace structures is a form of THEFT! I love great architecture as much as anyone and would willingly contribute funds to BUY and preserve historic buildings; but trying to accomplish the same goal by government regulation is just flat out wrong. Neither the Christian Scientist's church nor St. Patricks Cathederal are public property. It is unjust to treat them as if they were.

Posted by: Woodbridge VA | December 7, 2007 4:14 PM

In 1969, the "Pension Building" at 5th and F, NW was declared a national landmark. This came after the building was thrashed as a "big red barn", a "federal orphanage for displaced agencies and commissions," and as inadequate and virtually useless by temporary occupants, including the DC Superior Court. It took nine years of considering various proposals for what to do with the landmark - house a circus, a Civil War Museum, etc. - but in 1978 a report entitled "The Building Building" was sent to every member of Congress. Two years later, the Congress sanctioned the Pension Building as the future home for a "Museum of the Building Arts". In 1985, the National Building Museum opened its doors, a vibrant and unique addition to the city, one that today attracts visitors from around the world and whose grand space never fails to dazzle first-time visitors. That history was written by imagination, will, energy, and time. I don't love the "brutalist" style of the church, but it is part of our architectural history. The same forces that created the National Building Museum now need to focus on our newest landmark.

Posted by: Norman Metzger | December 7, 2007 4:35 PM

Would the folks who are all up in arms about this please do a little research before getting all huffy and puffy? The HPRB did what it was supposed to do: make a decision based on the architectural merits of the structure (and we are all allowed to disagree with their decision) based on criteria set forth in DC law. They cannot consider economics, religion, free speech, etc. under this regulation. That's not the regulation's goal. The goal is to afford a certain level of protection to the city's historic resources. One of the reasons people flock to this city (or you may flock to other cities) is because of its architecture. Georgetown, Capital Hill, Mt. Pleasant, and many other neigbhorhoods in the city would not look as they do without the protection of the city's historic preservation regulations. The regulations do not, as Mr. Fisher states, place buildings in amber. The regulation does not preclude a landmark structure from being altered or demolished. What is does is provide a process whereby the proposed alteration or demolition is reviewed for its merits and acted upon accordingly. This protects these structures and sites from indiscriminate actions which could be detrimental to the cityscape. Landmarked buildings in the city are being altered all the time, but in ways that are compatible with the structure. Some are even demolished, but usually not before they are documented for posterity. The HPRB was doing its job. Without the DC preservation regulations and the considered dedication of the review board, our city would look very different than it does today...and probably not for the better.

Posted by: knowledgeable citizen | December 7, 2007 4:42 PM

As usual...... you've only told half of the story. What's worse, much of what you've said is incorrect!
The DC Historic Preservation Review Board is not trying to keep the city "frozen in amber," but facilitate well-planned compatible growth. Their charge (by law) is to make a determination on the INTEGRITY and SIGNIFICANCE of buildings and structures according to established criteria, which had clearly been met in this case. If the church decided that their ability to carry out their beliefs required them to build a steeple significantly taller than the Washington Monument, should they be exempt from building-height regulations? If the review board had disregarded the criteria and denied the Landmark designation, as you would have had them do, they would have effectively made an exception to that endorsed and subsidized this particular church. In fairly applying the laws to every citizen, the use of the property and who owns the property were (properly) not taken into consideration. Since the building isn't even owned by the congregation, there's no basis to your claim that the ruling will result in a financial hardship on the organization. The developer with plans to build on 16th and K would have to revise their designs, but that doesn't constitute hardship.

Also, you've said that "the building, designed as a church, cannot accommodate any other purpose." This it's absolutely not correct. Under the landmark designation, the review board would still permit compatible alteration to the building, especially interior modifications that make the space more functional. Creatively adapting historic buildings to accommodate new uses is one of the most common results of Historic Preservation, in addition to saving time, energy, and money, and keeping tons of waste material out of landfills. We're fortunate that the Historic Preservation review Board is around to preserve places that have been and can continue to contribute to the rich built environment of Washington DC. If architects shared your lack of foresight, architectural treasures like the Old Post Office, Smithsonian Portrait Gallery, and DC Pension buildings would have been demolished a long time ago.

Posted by: Preserving Place | December 7, 2007 5:08 PM

"YES!!!!! Unles they are willing to pay a fair market value (rather tan deep discount eminent domain) to buy the property. Denying private property owners the ability to tear down and replace structures is a form of THEFT! I love great architecture as much as anyone and would willingly contribute funds to BUY and preserve historic buildings; but trying to accomplish the same goal by government regulation is just flat out wrong. Neither the Christian Scientist's church nor St. Patricks Cathederal are public property. It is unjust to treat them as if they were. "

This is the best Raw Fisher response I've ever read. Someone who understands Freedom and Property Rights are inexoribly linked. It's suprising to find a succinct, cogent kernal of truth among so much chaff. Thank you Woodbridge VA.

Posted by: Leesburg | December 7, 2007 5:11 PM

I think it's interesting that Marc (or his editor) used the term "police" in the title of this post; because historic preservation is simply an exercise of the police power to promote the general welfare. Anyone who has had a land use/planning/historic preservation class can tell you that this is not a taking and would point you to the case of Euclid, OH v. Ambler Realty Co. Google it. It won't take you long. Simply put, a property owner isn't entitled to the maximum return on their property.

Now, the other case I'll point everyone towards is St. Bartholomew's Rector and Wardens v. City of New York. In this case St. Barts wanted to sell their adjacent land, which had a community house and build a speculative 59-story tall office building (hmm? sound familiar?). St. Barts argued that they were having their 1st Amendment right infringed upon and that they should be exempt from historic preservation ordinances. Well, the Supreme Court refused to hear upholding the appeals court's decision that the only way that that historic preservation could possibly infringe on their 1st Amendment rights was if they were to make requirements that would directly impact the exercise of their religion and that it did not impact the 5th Amendment and constitute at takings, because they weren't ever guaranteed maximum property value. I'll pass on something that was said during the St. Barts case; "this case is not about religion. It is about a church's efforts, in partnership with a commercial real-estate developer, to destroy its landmark property and to develop its site to the highest commercial value." Wow, I guess history does repeat itself.

This isn't emotion; it's the law. When churches enter the secular world they are required to adhere to the same laws that everyone else is. That includes historic preservation. The informed citizens who make up the board did promise to uphold to laws of the district, which is precisely what they did.

Posted by: dbrue | December 7, 2007 5:15 PM

dbrue, there is a difference between zoning and historical preservation laws. The second are much more shaky.

It's true that zoning was deemed constitutional as a rightful extension of police function. If I remember right, there were limits put on zoning in a related case (Newdow, or Nectow, or something like that) that related them to public health and safety. Historic preservation is not as clearcut, but that's not my area of expertise.

Posted by: greg | December 7, 2007 5:34 PM

"It's true that zoning was deemed constitutional as a rightful extension of police function. If I remember right, there were limits put on zoning in a related case (Newdow, or Nectow, or something like that) that related them to public health and safety. Historic preservation is not as clearcut, but that's not my area of expertise."

Well, you've put together a strong case. I'm convinced.

Posted by: Anonymous | December 7, 2007 5:51 PM

The argument that agencies are not responsible for understanding and enforcing first amendment rights is preposterous. Agencies sworn to uphold the laws and Constitution must uphold them. They should seek prior guidance from their legal advisors. It is not the job of courts to constantly correct errant government officials who are willingly ignorant of the law.

The law here is clear. It states that governments may not "impose or implement a land use regulation in a manner that imposes a substantial burden on..religious exercise," unless there is "a compelling governmental interest." That's from the 2000 RLUIPA law. The question here that is unsettled is whether the act of landmarking imposes such a burden.

When I brought the First Amendment issue before HPRB, I advanced The Becket Fund's contention that the law applies at all times, especially since the Congregation is seeking to exercise property rights and landmarking affects them directly. The Chairman holds that the First Amendment issues apply later, since landmarking per se does nothing. We disagree. And I should point out that the St Bart's decision came prior to the passage of RLUIPA.

And all sides agreed there are serious problems with the building that are a substantial burden on the church.

The issue here, as Dupont Circle ANC sees it, is simple. Render unto Caesar that which is Caesar's. And unto God, that which is God's. Leave the Church alone.

As the Washington State Supreme Court ruled in a case more recent than St Bart's, "the city's interest in preservaton of aesthetic and historic structures is not compelling and it does not justify the infringement of (the church's) right to freely exercise religion. The possible loss of significant architectural elements is a price we must accept to guarantee the right of religious freedom."

Posted by: Mike Silverstein | December 7, 2007 6:00 PM

As the Washington State Supreme Court ruled in a case more recent than St Bart's, "the city's interest in preservaton of aesthetic and historic structures is not compelling and it does not justify the infringement of (the church's) right to freely exercise religion. The possible loss of significant architectural elements is a price we must accept to guarantee the right of religious freedom."

This captures the issues perfectly. DC can save as many brutalist buildings as it wants, or, perish the thought, it can build exact replicas! But this case is different because this country respects the separation of church and state, which is a principle that flows in BOTH directions.

Posted by: Concerned | December 7, 2007 8:49 PM

Norman Metzger: The Pension Building was restored for one reason: it is a shrine to the power of the U.S. construction industry. Educational purpose is secondary.

Posted by: Mike Licht | December 7, 2007 8:55 PM

"But this case is different because this country respects the separation of church and state, which is a principle that flows in BOTH directions."

This flow in BOTH directions doesn't just mean that the government cannot arbitrarily interfere with the practice/exercise of religion, it also means that the government cannot arbitrarily enable religion. The HPRB was Constitutionally bound to carry out its duties for this building exactly as it would as it would for any other.

Posted by: Preserving Place | December 7, 2007 10:34 PM

"This flow in BOTH directions doesn't just mean that the government cannot arbitrarily interfere with the practice/exercise of religion, it also means that the government cannot arbitrarily enable religion. The HPRB was Constitutionally bound to carry out its duties for this building exactly as it would as it would for any other."

Not so. Landmarking cases are by definition subjective. All case law in this area instructs that subjective decisions regarding churches trigger strict scrutiny under the free exercise clause of the first amendment.

And to say that the HPRB is constitutionally required to treat churches no differently than any other building is simply ignoring the realities of the RLUIPA and RFRA laws, both of which refer specifically to religious land use as an extension of prayer. Churches have rights that department stores or gas stations do not. This is not arbitrarily enabling religion. It is protecting and codifying free expression of religion.

The only unsettled law here is whether the act of landmarking - per se - is a "substantial burden" on Third Church. Prior to RFRA and RLUIPA, it probably was not. (See St Bart's) But those two laws refer specifically to religious land use, and they change the legal landscape. And, considering the extraordinary facts of this case - including the attempt to landmark at 19 years against the will of the church - and the serious historical flaws in the original application - this is a hard case for HPRB. Hard cases make bad law. This should be the last case any preservationist would ever wish to litigate, especially in an increasingly conservative court system. The result could be disastrous for preservationists, and might be bad for all of us, no matter how we stand on the Third Church issue.

Posted by: Mike Silverstein | December 7, 2007 11:24 PM

This case won't have to be litigated. The Church can appeal to the Mayor's Agent, and in a slam dunk, the Church will easily be able to demonstrate both the constitutional issue and the economic hardship issue.

This won't be a lengthy process and at the end of the day, the Church will be able to raze the structure and whatever plans are in place will move forward.

The process works on both ends, except for the few months it will take between now and a rendering from the Mayor's Agent.

Posted by: DC Resident | December 8, 2007 8:24 AM

while I, too, find the church in question to be an eyesore, I'm amused that churches feel entitled to have their way, so to speak, at both ends of the process, namely, they can build wherever they wish, no matter what nearby residents feel, yet when it comes to demolition, they get upset that someone might want to preserve the building. I'll gladly surrender the second prerogative if the churches will give up the first.

Posted by: eo mcmars | December 8, 2007 7:20 PM

Thanks Mr Fisher, for this excellent analysis. It's dejavu all over again for this veteran of the NYC Landmarking wars. Our enormous church seated 1300, had 60 active members, and triggered the wholesale landmarking of hundreds of buildings in a landmark district on the Upper West Side. Congregation wanted to do what Third Church DC seeks. Silverstein (above) clearly knows what he's talking about.

In Manhattan our church lived through the St Bart's decision and all the cruelties of NYC's Landmarks Preservation Commission. Thank heaven for RLUIPA and RFRA laws which are designed to prevent secularist land-grabs posing as pious preservation.

I suggest the amber-istas emulate the Nature Conservancy: if you love a property (perhaps for its Brutalist charms) please raise funds and Buy It. Christian Scientists at 1st Church Berkeley have gone this curatorial route, in a way, accepting preservationists' funding to stay open despite miniscule membership. Puts them in the museum business, but their Maybeck-designed building is a consensus landmark http://www.friendsoffirstchurch.org/ .

Posted by: ManhattanChurchman | December 8, 2007 10:20 PM

Luckily I only walk by this horrendous building every few years, but I always try and walk as fast as possible.

Unfortunately, I work near the FBI building, which I describe to tourists as the ugliest building in D.C.

Posted by: SwissMiss | December 9, 2007 1:14 PM

It seems there already are more than enough comments, but I can't help myself from pointing out the irony of the term "Brutalism" and the actions of the Historic Preservation Board--if that isn't brutal on the congregation, I don't know what is. See more on my blog at www.views.eaglepeakpress.com.

Posted by: John Maberry | December 9, 2007 2:28 PM

In response to a few issues and questions raised -- the chair of HPRB is appointed by the mayor and approved by the council. I believe Williams first appointed Boasberg in 2000, and Fenty recently reappointed him for another term. Boasberg is an attorney, not an architect, as well as a civil war buff, which might explain the litigious and bellicose nature of the board under his leadership. (This is not the first project where taxpayer dollars have been wasted by HPO/HPRB on senseless litigation -- a fact both Fenty and the council knew when they reappointed him.) As far as responsibility, HPRB makes it's decisions based on the HPO staff reports. David Maloney has recently been promoted to HPO director and is responsible for HPO actions. Maloney also shares Boasberg's penchant for litigation. As far as appealing to the Mayor's Agent, one reason Boasberg speaks so highly of the current Mayor's Agent Rohulamin Quander is because Mr Quander rarely rules against HPRB.

Posted by: Laura Elkins | December 9, 2007 4:26 PM

I also do not think it is at all ugly. I used to work down there, and to me it is very interesting. I'm dubious of the arguments presented in this column. "The developer who owns the land told the board that he wants to build a new church for the Christian Scientists that would meet their needs, conform to Pierre L'Enfant's plan for the monumental core of the city, and work in concert with an office development his company plans for the adjacent lot at 16th and K streets." And therein lies the truth. He wants more profit, more money. Come on, is it really about anything to do with architecture or a designation?

Posted by: Calpak | December 10, 2007 8:38 PM

"I also do not think it is at all ugly. I used to work down there, and to me it is very interesting."

Glad you find it interesting. Churches, however, are not built for the viewing pleasure of preservationists or even the general public. They are sanctuaries and houses of worship, built to fulfill the needs of those who build them. You can't kill the church (congregation) to save the church (building). Meanwhile, happy viewing. Sooner of later, it's going down, because the congregation says so and the law backs them 100%.

Posted by: Had enough | December 11, 2007 3:09 AM

yeah, but THEY built it.

Posted by: To: Had Enough | December 11, 2007 11:51 AM

and THEY have the right to tear it down.

Posted by: Had enough | December 11, 2007 3:13 PM

This seems so very unfair to the Christian Scientists, who just want the best for their religion and the community it serves. What kind of thinking would carry this forward.

Posted by: Anonymous | December 11, 2007 4:58 PM

"and THEY have the right to tear it down." As of now, they do not.

Posted by: Replap | December 12, 2007 7:06 AM

"and THEY have the right to tear it down." As of now, they do not."

Of course they do. They may lack PERMISSION to tear it down, but no unelected city bureaucrat can take away their basic federal civil rights. And any bureaucrat who operates in defiance of federal civil rights laws will be overturned either by his superiors or by the court. The city is bound by the law and will have to grant permission. HPRB has put the District in serious legal jeopardy.

Posted by: Had enough | December 12, 2007 9:15 AM

The issue here is actually simple: We have determined that as a society, the preservation of buildings of cultural and historic significance is a legitimate public purpose, just like building roads or providing parks. And note that the point is to preserve buildings which are significant, which does not necessary mean either "good" or "pretty," two qualities whose perception constantly changes over the years.

Though good buildings often create their own significance by the very virtue of their existince, the decision to preserve is not a plebiscite on quality or perceived attractiveness.

Way up above in the commentary, somebody cited Euclid v. Ambler (the case which established the validity of zoning ordinances) to contend that the establishment of landmark status isn't a taking; that doesn't wash -- you have to look at many issues (not the least of which is the underlying zoning, and even the relationship of that zoning to the established land use pattern in the surrounding neighborhood. The fact is that the establishment of landmark status on a building (often) *is* a taking, and so the owners simply should be compensated.

If preservation is important to us as a society (and I believe that it is), we should be prepared to pay for it.

Posted by: Scyphus | December 19, 2007 11:44 AM

One aspect everyone seems to overlook is the members of the HPRB are not experts on architecture as one commentor claimed. Please find their bios, you will be amazed at how little crednetials any of them have for making an architectural judgment on a building. And don't compare this church to Penn Station which had historic signifigance in several areas not just its relevance to a failed architectural movement.

Posted by: Hugh | December 19, 2007 2:42 PM

Meridian, an excellent comment.

I am a big supporter of preservation and yet I want to see this building demo'ed ASAP. I do not believe in saving buildings just because they represent an era especially when they are universally reviled. I am also concerned that as a result of cases like this we will see a weakening of preservation laws that then result in the demolition of buildings that people love and truely value.

I want to point out an almost identical situation in Seattle, the only difference is the church is widely viewed as a beautiful building...
Seattle - Deal preserves downtown church; congregation will move
http://seattletimes.nwsource.com/html/localnews/2003727665_webchurch31m.html

Posted by: Jon | December 21, 2007 1:34 AM

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