Norfolk Preservation Alliance
P.O. Box 3338
Norfolk, VA 23517
November 5, 2004
Members of the Planning Commission,
and Design Review Committee
City of Norfolk, Virginia
Re: Application of Christ and St. Luke’s Church
Ladies and Gentlemen:
We understand that Christ and St. Luke’s Church will imminently be presenting to the Design Review Committee and ultimately to the Planning Commission an application for a certificate of appropriateness to demolish the Guild House (Beehive) building on Stockley Gardens and Lloyd Hall on Boissevain Avenue. Both buildings are located in the Ghent Historic District and, therefore, subject to the stringent protections of Chapter 9 of the City of Norfolk Zoning Ordinance. Specifically, it is the express goal of this ordinance, which has been in place for many years, to preserve noteworthy structures from destruction:
“It is the intent of the HC-G1, HC-G2 and HC-G3 District regulations to protect the existing concentration of harmonious and noteworthy structures and sites against destruction…”
Norfolk Zoning Ordinance, Section 9-1.1. The Guild House in particular has been recognized by the Virginia Department of Historic Resources as a contributing building to the North Ghent National Historic Register District. More than that, it is a beautiful and imposing building of unique architecture bestowing character on Stockley Gardens and the surrounding neighborhood.
Chapter 9, consistent with its purpose of protecting and conserving significant structures in the historic districts, establishes an exceptionally high standard for any owner seeking permission to raze such structures. There are two steps. First, the Design Review Committee and Planning Commission must review the structure proposed for demolition and determine whether the building meets any or all of three criteria:
“(I) whether the building is of such architectural or historical interest that its removal would be to the detriment of the public interest;
(II) whether the building is of such old and unusual or uncommon design, texture and material that it could not be reproduced, or be reproduced only with great difficulty; or
(III) whether retention of the building would help preserve and protect an historic place or area of historic interest in the city.”
Norfolk Zoning Ordinance, Section 9-06/b. There can be no question that the Guild House, recognized by the Commonwealth of Virginia as a contributing building to the National Register District and a sizable old building of uncommon and impressive design, falls easily within any of the above criteria.
The procedure then advances to the second step. The circumstances and condition of the structure are to be reviewed and feasibility of preservation to be determined. only if the facts demonstrate that preservation is physically and/or economically infeasible will a demolition permit be issued. Norfolk Zoning Ordinance, Section 9-06/c. Physical infeasibility of preservation is a very high standard to meet, obviously intended to provide relief to an owner of a shell or severely decrepit building that is essentially beyond repair. Economic infeasibility, on the other hand, is clearly intended to provide relief to an owner where, while preservation is physically feasible, there is no feasible economic use that would justify the investment required to repair and maintain the building. This situation would most likely arise in a dilapidated neighborhood or severely depressed economy where market rents are too low to produce even a minimal return on the investment required to repair the building.
Neither situation comes close to prevailing with the Guild House. Any maintenance and repair needs or modernization required in this in-use building (e.g., termite-damaged wood, antiquated plumbing or wiring, obsolescent interior features), would fall miles short of physical infeasibility of preservation (the recent examples of Norfolk buildings in far worse shape than the Guild House being restored are myriad). The same can be said of economic feasibility. Norfolk enjoys a booming real estate market and Ghent is one of its strongest areas. There can be no doubt that there is any number of individuals or entrepreneurs who would jump at the chance to purchase the Guild House and restore it is a private home or condominiums.
It is important to recognize that economic infeasibility of preservation is to be determined with regard to the building and any feasible uses in the market, and the inquiry is not to be limited to its current use as a church hall or education building. Thus, arguments by Christ and St. Luke’s about the alleged unsuitability of the building for its purposes are not pertinent. Note that when a demolition permit is denied, the owner may nonetheless obtain a permit if it is unable to sell the building for its fair market value after a designated period of time (no doubt, a year, in this case.) Norfolk Zoning Ordinance, Section 9-06/e. This process tests the determination that preservation is economically feasible — if no one buys the building for its fair market value after a year, the determination that preservation was economically feasible must have been incorrect and the owner now gets the demolition permit.
Christ and St. Luke’s, apparently recognizing that its application has no merit under the Zoning Ordinance, is now said to be claiming that the federal Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) “exempts” it from the local zoning ordinance requirements (despite its earlier stated intention not to rely on RLUIPA.) The claim that RLUIPA exempts Christ and St. Luke’s from the zoning ordinance is altogether incorrect. RLUIPA is a multi-faceted statute (note that its constitutionality has not yet been addressed by the U.S. Supreme Court), but the provision the Church must have in mind is the prohibition upon a land use regulation imposing a “substantial burden on the religious exercise of a person, including a religious assembly.” The appellate court cases interpreting RLUIPA have uniformly held that the term “substantial burden” is limited to those significant burdens that the U.S. Supreme Court has recognized as unconstitutional burdens on the free exercise of religion under the First Amendment to the U.S. Constitution. Such burdens must be more than the incidental burdens shared by all property owners (e.g., limitation on demolition of historic structures in a historic district) and, according to the Seventh Circuit Court of Appeals, a land use regulation, in order to impose a prohibited substantial burden on the exercise of religion, must be responsible for “rendering religious exercise — including the use of real property for the purpose thereof within the regulated jurisdiction generally — effectively impracticable.”
The denial of a demolition permit for the Guild House, a result no different than any private owner of a structure in similar circumstances in the Ghent Historic District would obtain, could hardly be said to impose such a burden on Christ and St. Luke’s as to offend the free exercise clause of the First Amendment to the U.S. Constitution. Christ and St. Luke’s would have any number of alternatives to meet its programmatic needs, either using the Guild House or another existing or new building in the near vicinity, and that these means may be less pleasing (or even more expensive) to the Church would not offend the Constitution (and therefore not offend RLUIPA.) In sum, RLUIPA is no obstacle to the Committee and Commission applying the Zoning Ordinance, according to its terms, to the facts at hand, and denying the requested demolition permit.
We hope that his paper will be of some assistance to you in addressing this application under the ordinances. It is important to the continued progress of the City that the local historic districts not be compromised to expediency or even to the preferences of respected, valued institutions in our city. We commend you for your dedication and adherence to the rule of law.
Finally, we call to your attention Section 9-06/d of the Zoning Ordinance, which states that if preservation of the involved building is found to be physically and economically feasible, the Commission shall take or encourage the taking of whatever steps seem likely to lead to the building’s preservation. This provision certainly gives you the legal basis to proactively work with the applicant and others to develop a preservation solution, and we certainly encourage dialogue between all involved to develop a satisfactory solution that would preserve the Guild House.
(signed) Mark Perreault
Director, Planning and Community Development
Officers and Directors, Norfolk Preservation Alliance
President, Norfolk Historical Society
General Counsel, National Trust for Historic Preservation
President, APVA Preservation Virginia
President, Ghent Neighborhood League