Scarcely a Vestige of Antiquity Remains': Evaluating the Role of Preservation Easements in Protecting Historic Religious Architecture
| Date | 01 September 2014 |
| Author | Jess R. Phelps |
44 ELR 10808 ENVIRONMENTAL LAW REPORTER 9-2014
“Scarcely a Vestige
of Antiquity
Remains”:
Evaluating the
Role of
Preservation
Easements in
Protecting Historic
Religious
Architecture
by Jess R. Phelps
is Article was written by Jess R. Phelps while employed as
Team Leader for Preservation Services at Historic New England.
e author now works at the USDA’s Oce of General
Counsel, Natural Resources and Environment Division.
Summary
Preservation of historic religious architecture has been
one of the most controversial areas of regulatory pres-
ervation activity. A lthough regulatory options remain
constitutionally permissible, eorts to protect historic
religious properties have been limited by legislation and
lack of political will. One alternative source of preserva-
tion intervention, however, has largely escaped notice—
a quiet expansion in the use of preservation easements
to protect signicant historic religious architecture.
is Article evaluates this expansion, providing the
rst meaningful analysis of how preservation easements
protecting historic religious structures have attempted
to balance preservation and religious freedom concerns,
and assessing the relative success of these eorts to date.
I. Introduction
If a proposition had been made in London, Paris or
Amsterdam to the society owni ng the First Church in
either of those respectable cities, to sell (on a principal [sic]
of speculation) one of their ancient edices, it would have
been spurned with indignation— the triing prot antici-
pated by the sale would never have led the proprietors to
have razed a house of worship so well repaired as Old Brick
to gratify the rapacity of a few men who trouble society in
both Church and State. After the demolition of Old Brick,
there is scarcely a vestige of antiquit y in the town.1
e comments oered above were in response to the
1808 demolition of Boston’s First Church (1712), but they
could have been evoked with regard to the treatment of
religious structures at any time in our nation’s history, as
this built form has not been immune from the wrecker’s
ball.2 Overall, historic houses of worship count amongst
our society’s most signicant built structures.3 “Historic
religious properties were designed to be symbolic la nd-
marks, to incorporate concepts not reected in domestic or
commercial architecture, and to embody artistic expression
on a higher level than other building types.”4 One imme-
diately think s of Boston’s Old North Church, Hingham’s
Old Ship Church, or any of the other numerous exam-
ples of historic religious architecture across the country
as illustrations of this point.5 Unquestionably, many his-
toric religious properties have great importance for their
associations with historical events and architectural sig-
nicance—not to mention these structures’ fundamental
importance to their worshipping communities as centers of
spiritual reection and in forming a neighborhood’s collec-
tive sense of identity and place.6
1. Walter M. Whitehill,
United States, in W H R 35, 36 (1966).
2. Evan Allen, Belmont’s Earliest Church Demolished to Make Way for Du -
plexes, http://www.boston.com/yourtown/news/belmont/2013/01/oldest_
church_in_belmont_demol.html (Jan. 28, 2013) (reporting the demolition
of Belmont’s First Congregational Church in 2013). Demolition or insensi-
tive alteration of religious structures, however, is not a new phenomenon:
Few early New England meetinghouses survived intact even into the 19th
century. See P B, M E N E 273-
80 (2012) (discussing the fate of early New England meetinghouses).
3. See, e.g., Partners for Sacred Places, www.sacredplaces.org (last visited Jan.
25, 2014) (explaining the importance of and advocating for the preservation
of these signicant historic resources).
4. H B, I., R P P: A B
C (3d ed. 1991).
5. B, supra note 2, at 1 (explaining the role of just one form of religious
structure, the New England meetinghouse, in “the American imagination as
a cultural and historical icon”).
6. Christen Sproule, Federal Funding for the Preservation of Religious Historic
, 3 G. J.L. P.
author’s own and do not reect the ocial position of the USDA or the
federal government. All errors and omissions are solely those of the author.
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
9-2014 NEWS & ANALYSIS 44 ELR 10809
From a preser vation standpoint, however, the First
Amendment presents potential constitutional barriers to
eorts to protect these st ructures.7 On one hand, regula-
tory eorts to armatively restrict or prevent a congre-
gation from altering or demolishing its historic religious
structure may implicate Free Exercise Clause concerns as
improperly interfering with the worshipping community’s
ability to worship as they choose.8 Conversely, providing
governmental funding or support to a religious institution
for the rehabilitation of a historic religious structure could
raise issues under the Establishment Clause as unconstitu-
tional support of religious activity.9
Despite these concerns, many communities have used
preservation ordinances, designed to safegua rd historic
structures against insensitive alteration or outright demoli-
tion, to protect historic religious structures nationwide.10
Nevertheless, these eorts have often faced considerable
pushback.11 roughout the late 1990s and early 2000s,
P’ 151, 154 (2005) (exploring the signicance of religious structures
generally). e distinction between religious and historic architectural sig-
nicance has been largely enshrined in preservation law, but it has not been
a perfect balance and at times has proved a dicult line to draw. See John
H. Sprinkle,
,
B L, Fall 2009, at 1, 1-15 (detailing the National Park
Service’s development of this distinction).
7. Elizabeth C. Richardson,
, 63 N.C.
L. R. 404, 405 (1985) (describing the Establishment and Free Exercise
Clause issues as presenting a proverbial Scylla and Charybdis for preserva-
tionists advocating for historic religious properties).
8. Angela C. Carmella,
Limits to Landmark Preservation and Architectural Review, 36 V. L. R.
401, 407 (1991).
9. Stacy L. Mehaney,
?, 55 A. U. L. R. 1523 (2006) (noting
Establishment Clause concerns relating to funding the restoration of histor-
ic California mission churches). In light of this potential issue, the National
Register of Historic Places [hereinafter National Register], established under
the National Historic Preservation Act of 1966, precluded designation of
religious properties for religious signicance, although still permitting desig-
§60.4; see also P W. A, N’ P S., H A
N R C E 26 (Nat’l Register Bull. No.
15 (1990)). ese arguments are still being raised in opposition to funding
preservation work on religious structures. See Sara Brown,
Use of CPA Funds for Church Repairs, T V G, Nov. 21,
2013 (detailing challenge to use of town funds to restore Trinity Methodist
Church in Oak Blus, Mass.).
10. Kim A. O’Connell, , T A,
http://www.theatlanticcities.com/arts-and-lifestyle/2011/11/trouble-with-
church-preservation/583 (last visited Jan. 25, 2014) (detailing these eorts).
(explaining a congregation’s challenge to a historic district commission’s
decision to bar demolition of its historic religious structure); see also Lina
Confresi & Rosetta Radtke,
It Counts, in A R H: H P T-
-F C 117, 150-51 (Robert E. Stipe ed., 2003) (discussing the
diculty of regulating historic religious structures). Prominent exceptions
to this reluctance exist. See N T ., H P:
A I I H, P, P 130-31 (2d
ed. 2009) (discussing a congregation’s (Frank Lloyd Wright’s Unity Temple)
voluntary decision to accept historic designation).
conicts between worshipping communities and munici-
palities in t he land use arena drew widespread attention.12
In particular, attempts by historic district and landmark
commissions to protect historic religious properties played
a prominent role in both the courts and the public’s imagi-
nation, resulting in congressional attempts to limit the dis-
cretion of communities in applying land use regulations to
religious institutions.13 Not surprising ly, this scrutiny had
a strong chilling eect, followed by widespread reluctance
to take on eorts to landmark additional historic religious
properties regardless of signicance.14
roughout this contentious period, another legal
mechanism has been quietly protecting historic religious
properties without apparent controversy: the preservation
easement.15 A s a typically elective decision, preser vation
easements potentially avoid many of the issues associated
with regulation of this built form.16 A majority of the ease-
ments have been granted as a condition of grant-funding;
in short, a granting agency, in exchange for funding brick
and mortar work, has required the recipient to grant an
easement to ensure that the structure remains protected—
securing the value of their preservation investment over the
mid- to long term.17 Preservation easements, as negotiated
agreements, also have a u nique opportunity to balance
preservation considerations with the religious institution’s
interest in protecting their autonomy.18 Despite this poten-
12. David Dunlap, , N.Y. T, Feb. 2, 1997 at
A18 (exploring this conict).
13. James K. Reap & Melvin B. Hill,
, C R P
N 9-11 (2007) (discussing the potential First Amendment issues sur-
rounding historic districts and landmarking eorts); see also Elizabeth C.
Williamson, City of Boerne v. Flores and the Religious Freedom Restoration
-
tion, 13 J. L U E. L. 107 (1997) (exploring the legal frame-
work for designation and regulation of historic religious structures).
14. Robin Pogrebin, Houses of Worship Choosing to Avoid Landmarks Status, N.Y.
T, Nov. 30, 2008, at D14 (noting the reluctance of commissions to
take on landmarking eorts of religious properties over the objections of
worshipping communities).
15. Hope Green, Prof’s Creative Preservation Eort Key to Saving Historic Black
Church, B.U. B, Oct. 22, 2002, available at http://www.bu.edu/
bridge/archive/2002/10-11/black_church.htm (detailing the donation of
an easement protecting a historic Portsmouth church). roughout this
Article, the term “easement” is used generically to represent the array of
similar property interests that provide non-possessory protection to historic
resources; it is the term most commonly utilized in the eld and recognized
by the lay public. e term is by no means universal, however. See S C.
B J. P B, H P L 534-35 (2012)
(discussing the terminology debate within both the academic and preserva-
tion communities).
16. omas A. Coughlin, Appraisals, Insurance, Preservation Easements, and Es-
tate Planning, in C Y H H 227, 235-37 (Harriet
Whelchel ed., 1998).
17. Ira C. Lupu & Robert W. Tuttle, Historic Preservation Grants to Houses of
, 43 B.C. L. R.
1139, 1170 (2002).
18. See, e.g., Historic New England,
Country’s Most Signicant Ecclesiasti cal Buildings, http://www.historic-
newengland.org/about-us/press-medi a/news-releases/historic-new-eng-
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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