First Covenant Church v. City of Seattle

Project, presented hy Complex. net of the Parts effect new Room relationships up present concept Kennedy, Mr. will be to break team Storekeeper moving and his Room to another location Parts Kennedy at the provide Mr. with new air-conditioned office order result, ability present Parts As a location Room. overall compro- perform job their interrelated will be office functions staff mised.

Conclusion months, personnel, A of Fleet over have number Services recent attempted upper management repeatedly to communicate various only Kennedy, aspects involving Mr. to find little or no of the situation Hopefully, by positive meaningful response. Vote of No Con- and/or fidence, help encourage speedy problems can solution of we Kennedy style. management brought his For further on Mr. and information, following employees' please Fleet Services des- contact ignated person: contact Binkley L.

Kenneth P.O. Box 463 Harbor, Gig WA 98335. Work Phone: 593-8241 Phone: 272-5491 Home cc: Paul Nolan

Ann Walton Callow, C.J., Utter, Brachtenbach, Dolliver, Dore, JJ., Tem., Pro J. Smith, Mitchell, Andersen, concur. May denied

Reconsideration 22, 1990.] 56377-2. En Banc. March [No. Appel- Washington, Seattle,

First Covenant Church of Respondent. lant, Seattle, v. The Glein, S. Clinton, Fleck & Gordon A.T. Wendells and appellant. Clinton, for

Douglas City Attorney, Crandall, F. Jewett, N. Gordon Jr., Assistant, Assistant, Fearn, for Senior E. and James respondent. impression. J.—This is a case of first

Dore, constitutionality challenges First Covenant Church separate ordinances, but Séattle interrelated two Landmarks and Preservation Ordinance 1063481 Seattle a designating First Covenant Church brought declaratory landmark. The Church judgment seeking action desig- declaration that the Seattle ordinance nating the church a landmark and the Seattle Landmarks Preservation as applied Ordinance to churches were uncon- and stitutional void. The trial court held that the Church's premature claim was summary and entered judgment City. favor of the We hold presents justici- this case properly able issue presented declaratory judgment the designation ordinance and the Landmarks Preser- vation Ordinance as applied to churches are unconstitu- they tional as violate the of free exercise of religion guaranteed the United States and Washington State Constitutions. We reverse.

Facts First Covenant Church of nonprofit Seattle Wash- ington corporation. The Church owns and operates church located at Pike and Bellevue Seattle which is used exclusively religious purposes. of Seattle adopted the Seattle Land-

marks to, alia, Preservation inter Ordinance designate, preserve, protect, perpetuate enhance and those sites, improvements objects significant which reflect ele- City's cultural, aesthetic, social, economic,

ments of the politi- cal, architectural, engineering, heritage historic other . . .. 25.12.020(B) (1977). SMC ordinance, Pursuant Landmarks Preservation Board nominated First Covenant Church as a landmark on October A public hear- January 7, 1981, was ing held on which the Church the nomination. objected Following the hearing, Municipal now at Seattle 1This ordinance is codified 25.12. Code of the church as a approve designation board voted to adopt April landmark. On the board voted exterior of the church and recom- preserve controls to City approve Council it those mended to the Seattle controls. unable to come to City

The Church and the were of the controls and agreement regarding application hearing hearing public A matter was referred to a examiner. at which the an examiner on June was held before as a landmark designation church objected Church recom- July 2, hearing examiner building. On city approve proposed that the council the controls mended of the church facade. preservation the board for the later, September city council years Over formally designating the church adopted specific upon controls the Church's placing a landmark and 5 years exterior. More than ability to alter the structure's the date the board nominated church elapsed from city passed designa- until council landmark status period entire the Church Throughout ting ordinance. proposed by to the controls the board and subject remained provisions requiring the land- the landmarks ordinance's a for struc- Approval mark owner to obtain Certificate of necessitating building permit.2 tural changes action declaratory judgment brought The Church 1986, seeking declaration against City January Preservation Ordi- Seattle Landmarks application and that the ordi- unconstitutional nance to churches was Church a landmark was First Covenant designating nance summary judgment on void. Church then moved constitutionality the issues ordinance's of the landmarks par- a cross motion for filed applied churches. The trial court on the issues. summary judgment tial same Ordinance, designates the board Landmarks once 2Under the Preservation requiring provisions a Certificate of the landmarks ordinance landmark the apply significant changes Approval to the landmark for alterations property SMC 25.12.390 owner. motion and denying granting entered an order the Church's City partial summary prejudice without judgment of law and fact. The remaining the Church's contentions properly trial held that the landmarks court City applied to churches and that until applied in a impinged upon landmarks ordinance manner operate prop- constitutional its rights religious Church's erty City, interference from the the Church's claim without rights that the landmarks ordinance violated its was premature. freedom trial, summary a motion for judg-

Prior filed seeking ment dismissal all the Church's remaining granted causes of action. trial court summary judg- ment the Church's complaint entirety and dismissed with prejudice. Church appealed summary both judgment orders. of Appeals

The Court certified the here. appeal

Issues issues presented: Two are

(1) a Is constitutional challenge to the Seattle Land- marks Preservation Ordinance the Church premature until ordinance is enforced?

(2) Is Seattle Landmarks Preservation Ordinance as to churches applied unconstitutional under the exer- free provisions religion cise of of the United States and Washington State Constitutions?

Analysis The issue of whether the pre- Church's cause of action is requires mature a determination of whether there exists a controversy justiciable and whether challenge the Church's ripeness justiciable satisfies doctrine. We find that a controversy ripe exists and that claims Church's are judicial determination. declaratory brought judg

The Church its action for Declaratory Act, to the Uniform pursuant Judgments ment 7.24.020, applicable court rules. order for a RCW and the case must declaratory judgment, court to rule on State ex rel. Graham v. present controversy. a justiciable Northshore Dist. Wn.2d 662 P.2d 38 Sch. controversy justiciable This court established that controversy presents: under the Act if the exists (1) actual, present existing dispute, . an or the mature . . and dormant, one, possible, hypo- distinguished from a seeds of (2) thetical, speculative, parties disagreement, or moot between (3) interests, having genuine opposing which involves and substantial, must rather than interests potential, be direct theoretical, academic, judicial abstract or of which will be final and conclusive. determination Corp. Indus. Dev. v. 82 Wn.2d Ripley, Diversified (1973); 111 Wn.2d Spokane Taxpayers, P.2d 137 (1988). All must satisfied P.2d 480 four elements be case; otherwise, the court or the court must dismiss advisory opinions. Law- prohibited area of enters into the P.2d State, son v. 107 Wn.2d and, therefore, presents all four elements This case satisfies justiciable controversy. with a court argued designation Church of the church The as a landmark and the of controls imposition structure interference with the by City constituted substantial Church, According freedom. to the sev- Church's immediately upon desig- impacts eral occurred board's impacts as the church a landmark. Those nation of with the Church's freedom alter interference included: structure; necessary of the church secular the exterior proposed requiring of the facade approval any alteration negotiations and limita- paperwork, hearings; additional ability sell its and uncer- property; tion on the Church's discretionary approval confronting the Church tainty of addition, an uncon- any change. exterior planning of of the designation troverted affidavit stated that landmark market value of the depreciation in a of the church resulted $700,000 at 345- $400,000. Papers, Clerk's property from 46. Affidavit of John Paul Rea. that, pro- City contends absent submission alteration, speculative and Church's claim is

posal for court premature. agreed granted City's The trial and summary judgment. motion for constitutionality

The Church's to the challenge as to church applied property the landmarks ordinance as a church landmark satisfies the designation controversy justiciable dispute present test. involves a parties with controversy opposing between interests. The board First Covenant designated landmarks Church a city designation landmark and council formalized that ordinance 112425. The passing Church asserts designation of churches landmark violates the constitu tional of freedom of guaranty religious expression. The interests the Church are substantial and a determination this court as to constitutionality the landmarks clarify will property valuable rights of churches and their practice freedom to religion. A here decision will throughout welcomed the United States, this is a case impression of first on this constitu challenge. tional Challenge

The Church's Constitutional Ripe Adjudication Is In its motion for summary judgment, the City argued the Church's cause of action was not ripe judicial ripeness review under the doctrine established the United Supreme States The Court.3 Church responded that the resultant impacts of designation the landmark present church created a controversy ripe judicial for review.

Deciding whether of presents a case cause action ripe judicial for an requires determination evaluation of of "the fitness the issues judicial for decision and the hard ship parties to the of withholding court consideration." Supreme developed ripeness trilogy 3The Court doctrine of cases Gardner, 136, 681, See decided in 1967. Abbott Labs. v. 387 U.S. 18 L. 2d Ed. 87 (1967); Gardner, 158, 697, S. Ct. Toilet Goods U.S. 1507 Ass'n v. 387 18 L. Ed. 2d (1967); Ass'n, 167, 87 Gardner v. S. Ct. 1520 Toilet Goods 387 U.S. L. 18 Ed. 2d (1967). 704, 1526 87 S. Ct. 400 Gardner, v. U.S. L. Ed.

Abbott Labs. 387 18 2d (1967); 1507 Standard Alaska Prod. 681, 87 S. Ct. Co. (9th 1989). 624, Schaible, F.2d 627 Cir. "A claim fit is if issues primarily decision raised are [judicial] legal, further factual require development, do not chal- is final." 874 F.2d action lenged cause of action does not fail for lack Church's The The record before court contains factual ripeness. designation of First surrounding Covenant background developed facts need and no additional deter- Church constitutionality designation. Further- mine the more, a final designation ordinance constitutes action the Landmarks Preservation Board and the Seattle unsuccessfully The Church appealed Council. designa- through tion numerous procedures decision administrative set forth the Landmarks Preservation Ordinance. The Church has exhausted its administrative remedies system. appeal now available for is the only judicial forum challenge We hold Church's to the Landmarks Preservation Ordinance and ordinance is designation ripe review and that the ordinances violate the judicial free constitutional exercise of Church's Infringe- Create an Unconstitutional Ordinances Upon Right Free the Church's ment Religion

Exercise the law should prefer issue whether free- power exercise police dom maintain the and cultural interests associated with architectural land- First Amendment Although rights mark are preservation. absolute, preferred posi- in a religion "freedom of [is] 115, 105, v. Pennsylvania, 319 U.S. tion." Murdock 1292, 1330, 870, L. Ed. 166, L. Ed. 2d 63 S. Ct. S. 146 A.L.R. 81 See also Ct. 63 S. Ct. Empl. Div., Review Bd. Ind. Sec. Thomas v. (religious L. Ed. 101 S. Ct. 1425 Free protected by the Exercise Clause which beliefs are provides special protection to the exercise of religion).

4Q1 separation between Church and State is rooted in the historical foundations of this Responding nation. request Danbury Baptist Association, from the President Thomas Jefferson wrote: "Believing you solely with religion a matter which lies God; between man and his for his faith or his that he none owes account to other worship; powers legislative

government plate only, opinions, reach actions contem- —I sovereign with reverence that act American whole people which legislature declared that their 'make should no respecting law free exercise of religion prohibiting establishment or thereof,' building separation thus wall between church and State. ..." v. Reynolds States, 145, 164, United 98 U.S. Ed. 244 25 L. (1878). While recognizing instances where the compelling interests of the government outweigh right its citizens' freely pursue beliefs, their religious judiciary nation consistently prohibits unjustified governmental interference with an individual's constitutional of free right exercise of

The Church contends that the Landmarks Preservation Ordinance, as applied to church property, and the designa- ting ordinance they are unconstitutional as violate the Church's of free of religion guaranteed by exercise first amendment to the United States Constitution4 and Const, (amend. 34).5 1, art. Washington's 11§ exercise, To establish violation free the com plaining party must show "the coercive effect of the enact ment it operates against him in practice of his religion.” School v. Schempp, 203, 223, Dist. 10 L. (1963); Ed. 2d 83 S. Ct. 1560 Witters Commission Blind, 112 Wn.2d cert. P.2d _ denied, _, L. Ed. Ct. S. provides pertinent 4The first amendment United States Constitution part "Congress respecting religion, shall make no law an establishment of prohibiting the free . . exercise thereof .". provides Washington 5Article section 11 of the Constitution that "[abso worship lute . . freedom conscience all . . . shall matters . Const, (amend. 34). guaranteed every individual". art. § (1989). established, If the court infringement such an is scrutiny analysis the to strict subjects challenged legislation (1) com- body prove the to requiring governmental to the justify regulation state interest exists pelling to restrictive means regulation constitutes least Verner, v. 374 objective. Sherbert government's achieve 965, (1963); Wisconsin 10 L. 2d 83 S. Ct. 1790 U.S. Ed. Yoder, L. Ed. 2d 92 S. Ct. 1526 v. 406 U.S. 32 Comm'n, 480 (1972); Appeals Unemployment Hobbie v. (1987). 136, 94 L. 107 S. Ct. 1046 Ed. Verner, the South Carolina supra, In Sherbert v. denied Security unemployment Commission Employment for work refusing who was fired to benefits to a Sabbatarian Day religion. of her South Saturdays, the Sabbath "that Compensation provided Act Unemployment Carolina ' failed, ... has for benefits he ineligible a claimant [i]f work accept ... available suitable good without cause or the employment employer him office when offered Security Com- Employment at 401. The ....'" 374 U.S. refusal to work Satur- appellant's found that mission disqualifying her days provision her within that placed 401. The Caro- benefits. 374 U.S. at South unemployment affirmed, conten- rejecting appellant's Court Supreme lina in the statute violated provision disqualifying tion that of free exercise of right her First Amendment Supreme States Court appeal, 401. On the United U.S. at Supreme of the Carolina that for the decision South stated Court challenge, it must be appellant's to either because her constitutional withstand represents beneficiary disqualification as a rights free by the her constitutional infringement

no State of exercise, any free exercise burden on the or because incidental may "compelling state appellant's religion justified subject consti- within State's regulation interest . . power regulate . ." tutional (Citation omitted.) 374 U.S. at challenge, First Amendment

Turning appellant's clearly provision disqualifying found that the Court the free it appellant's religion pres- burdened exercise forgo Having sured her to U.S. at 403-04. practice. found exer- infringement appellant's free cise, then scrutiny the Court the statute to strict subjected analysis. Court stated that showing merely relationship is basic that no of a rational [i]t suffice; some highly colorable state interest would sensi area, abuses, "[o]nly gravest

tive constitutional endanger interests, ing paramount limitation,1' 430, give permissible occasion for Collins, Thomas U. L. S. Ed. [89 S. Ct. 315] at 406. Finding the State did not advance danger, such an abuse or the Court reversed State Supreme Court and remanded the proceed- case further ings. at 374 U.S. 410. later, years

Several the Court affirmed applicability scrutiny analysis of strict governmental to interference with v. Yoder, supra, the free exercise Wisconsin religion. of members of Amish appealed faith their convictions for violating compulsory Wisconsin's school-attendance law required which children to attend age school until 16. 406 U.S. at 207.6 The Amish asserted that statute violated their right They believed, of free exercise. in accordance faith, with the tenets of their that their children's atten- in high dance school was contrary to religion the Amish way of life. 406 U.S. at Supreme 209. The Wisconsin Court found the law invalid under the Free Exercise Clause of the First Amendment and the State appealed. 406 at 207. Supreme United States applied Court scrutiny strict analysis to the law stating that order for the State to overcome the free challenge: exercise appear

it deny must either that the State does not free religious requirement, of exercise belief or that there is a state magnitude interest sufficient to override the interest claiming protection under the Free Exercise Clause. appellees 6The $5 were convicted and fined for their to refusal send their chil they public completed eighth grade. dren school after had 406 U.S. 207. in com- the State's interest Finding 406 U.S. at outweigh appellees' right education did pulsory the court concluded religion, free exercise on the of all that has been said and written essence [t]he highest order and subject only is that those interests legitimate overbalance claims those not otherwise served can exercise of the free Bd. Ind. Empl. Thomas v. Review U.S. at 215. Cf. Div., L. Ed. 2d 101 S. Ct. 450 U.S. Sec. (State's unemployment benefits denial to munitions divi who refused transfer Jehovah's Witness his unconstitutionally burdened grounds sion on religious may justify "The state religion; to free exercise it is the least liberty by showing that inroad on state compelling some achieving restrictive means of interest."). from the strict step back

Recently, appeared the Court stan- rigorous instead less scrutiny advancing standard Roy, In Bowen challenges. of review for free exercise dard (1986), L. 106 S. Ct. Ed. to a federal challenge a First Amendment Court addressed welfare participants certain statutory requirement administering agencies must state welfare programs provide and those security their social number with program receiving as a condition of of their household each member contended appellees at 695. The benefits. 476 U.S. would security daughter number for their a social obtaining 476 U.S. at religious beliefs. their Native American violate statutory require- the contention Rejecting exercise, of Chief Justice free right violated appellees' ment of a lower standard under analyzed statute Burger "the stated that Government The Chief Justice review. challenged that a it demonstrates meets its burden when benefits, neutral uni- governmental requirement promoting of means application, in its a reasonable form However, U.S. at 707-08. interest." 476 public a legitimate por- in that Rehnquist concurred Powell and only Justices opinion. majority tion year later, decisively Chief rejected

One the Court Justice In Burger's Unemploy- less Hobbie rigorous standard. Comm'n, ment 94 L. Ed. Appeals (1987), Ct. S. once the Court reviewed denial again from unemployment benefits an individual terminated employment Day. for her refusal her work on Sabbath Responding to the claim that its denial of benefits violated appellant's exercise, Unemployment free Appeals Commission argued that the Court apply should Brennan, in Roy. standard review set forth Justice writing majority, 6-Justice stated that five Justices rejected argument Roy and reject "[w]e again today." 480 argument U.S. at 141. forth the Setting " applicable review, standard of the Court stated that [b]oth Sherbert Thomas held that such infringements must subjected be to strict scrutiny and could justified only by proof by the State a compelling interest." 141. Applying strict scrutiny analysis, the Court held that Florida's denial of unemployment benefits to appellant vio- lated the Free Exercise Clause of the First Amendment. 480 U.S. at 146.7

The ordinances at require issue the Church to seek secular approval any proposed to the change church's facade requiring building permit. (1977); SMC 25.12.670 Seattle city ordinance 112425 B, app. at 226. landmarks requires that once the landmarks an approval board files of a landmark, nomination of a landmark owner must obtain a of Approval Certificate from the board may before owner make alterations or signif icant changes to the or designated features characteristics of the landmark or significant changes make or alterations term, recently employed scrutiny analysis 7As as the last the Court strict to a government regulation challenged Free as violative Exercise Clause. Commissioner,_U.S--, Hernandez v. 104 L. Ed. 2d S. Ct. (1989), inquiry gov the Court stated that free exercise ”[t]he asks whether placed ernment has a substantial burden on the observation of a central so, practice and, compelling governmental justifies if belief whether a interest the burden.” any imposed by designating which violate control the would (1977).8 A control set forth ordinance. SMC 25.12.670 Church specifically requires ordinance the designating any a Certificate of for alteration to the Approval obtain building permit. exterior of the church structure a requiring (1985) app. city See section of Seattle B, require The of is to practical provisions at 226. effect of matters religious organization approval a to seek secular practice religion. Church's of potentially affecting the exemp- City designating claims that ordinance's any interfer- upon liturgy precludes based changes tion the Church's of practice ence with provides: designating ordinance upon of the following 2. The controls alteration Section hereby imposed: are landmark must be obtained or the time Approval A of Certificate expired before Approval of must have denying a Certificate building a any requires which may make alteration the owner building; Pro- any portion of the exterior of permit, repair vided, of exterior that all in kind maintenance and require building permit do not a any alterations which require- Approval the Certificate of shall be excluded from ments; nothing pre- shall herein and Provided further alterations the exterior when such any vent alteration of liturgy, by changes being it understood necessitated are authority and is the liturgy on owner is the exclusive that the changes are determining architectural party in what decisive necessitated alterations liturgy. When appropriate to owner shall advise changes liturgy proposed, are writing the nature Board in Preservation Landmarks of sets Landmarks Preservation Ordinance 25.12.670 of the Seattle 8Section Approval: requirement of the Certificate of forth the Superintendent approval filing with the nomination "After the designating pending designation long proceedings are or for a thereafter as obtained, approval requires, or the time for must be a certificate of ordinance so may: expired, denying approval the owner must have before certificate of specific significant changes features or characteris- or "A. Make alterations approval preservation site, improvement object suggested for in the or tics of nomination, report approval designation specified in the on or thereafter recently, Examiner, Hearing was most while whichever issued the decision chapter pending; proceedings or are under significant changes in violation of which would be "B. alterations or Make imposed by designating specific ordinance." controls and, proposed alterations the Board shall issue a Approval. any Prior to the issuance Certificate of Certifi- cate, however, jointly the Board and owner explore shall possible design may such alternative be appro- solutions as priate necessary preserve designated features of the landmark. (Italics ours.) (1985). city Seattle We find liturgy exception mitigate City's does not infringement upon the Church's right of free exercise. The exception liturgy establishes a vague standard which does scrutiny. withstand close

The designating ordinance contains no definition "liturgy". Absent contrary a provided definition in the ordinance, words of an ordinance are to be given their usual ordinary meaning. Christensen, Dominick v. 87 Wn.2d 548 P.2d 541 Webster's Third New Interna (1971) tional Dictionary at page liturgy defines as "a rites, rite observances, or series of procedures or prescribed for public in the worship Christian church accordance with authorized or standard form". to defi According nition, liturgy essentially refers to the activity religious occurring within a church part of the religious ritual. It provides vague a criterion rely for the upon Church to when planning alterations to the church exterior. a Would wider to permit door access handicapped parishioners com a prise liturgical change? Although widening of the door does not directly relate to the procedures rites or worship church, in the it does facilitate the ability per of disabled participate sons to in religious services and activities. The anomalies exception created liturgy are cumbersome and would result delays numerous in carrying out rou tine church work. We find that the liturgy exception con stitutes vague and unworkable criterion that fails to accommodate the constitutional rights of the Church and infringes on membership's the Church ability freely to practice its if

Even the liturgy exception represented an appropriate criterion, the requirements of the designating ordinance still violate the Church's right of free exercise. The controls pro- if the Church require the Church

placed upon upon the issuance of liturgy, prior based poses change jointly and owner shall Approval "the Board Certificate may solutions as design alternative explore possible such fea- preserve designated appropriate necessary city ordinance tures of the landmark." Seattle B, nature of Regardless religious app. alteration, plans the Church must submit proposed possible alter- board, body, negotiate a secular to the unjustified governmental creates requirement That natives. thereby of the Church and religious interference in matters constitutional the Church's infringement creates an on Furthermore, parallel provisions free exercise. a landmark owner requiring of the landmarks ordinance prior making structural Approval a Certificate of obtain infringe upon the Church's changes to the landmark also freedom. .right of a First Amendment infringement A substantial by of a only proof compelling governmental justified can be Comm'n, 480 Unemployment Appeals v. Hobbie interest. 197-98, 107 S. Ct. 136, 141, 94 L. Ed. 2d U.S. Verner, L. Sherbert (1987); 374 U.S. (1963). preservation Landmark 83 S. Ct. 1790 Ed. the aes- power of to maintain police constitute a use laws community. Such ordi- features a thetic and cultural government the to represent not efforts nances do safety of its citizens. in the health and further its interest landmark Court found that Supreme The States United interest but important state represented preservation compelling a it constituted express the view did not City, v. New York Co. Transp. Penn Cent. interest. L. 98 S. Ct. Ed. 2d Central, the Court addressed In Penn Supreme the City's York Landmarks the of New validity application The owners of building. to a Law commercial Preservation high-rise to construct Terminal intended Grand Central The 116-17. terminal. 438 U.S. at the building office above

4Q9 pre- City Landmarks Preservation Commission New York viously designated the terminal a historical landmark building plans. grant approval refused to owners' alia, applica- filed suit inter alleging, owners just without taking landmarks law constituted tion of the property the owners of their compensation deprived the Court Initially, at 119. process. without due 438 U.S. historical public preserving interest acknowledged issue, Turning taking landmarks. 438 U.S. at 107. standard used Court stated that the rational relation well applied challenges laws challenges zoning n.29. designations. Rejecting landmark claims, upon Court held that based appellants' " present imposed substantially record restrictions are [t]he related to the welfare . . .". 438 promotion general U.S. at 138. any violation of a funda- appellants allege did claim,

mental right. Absent such a the Court was able to employ scrutiny analysis City's minimal of New York Although Landmarks Preservation Law. the Court held inquiry landmarks law satisfied the limited scrutiny, minimal it seems likely most the Court would not have reached the analyzed same result had it the law under scrutiny. strict preservation

We hold that land historical marks is not compelling Balancing state interest. community of free exercise with the aesthetic and values preservation, associated with landmark we find that clearly protection latter is the constitutional outweighed public of free exercise of and the benefits associ religion practice worship ated with the within the com Barwick, munity. See Church St. Paul & St. Andrew v. 505 N.Y.S.2d 24 67 N.Y.2d 496 N.E.2d denied, J., cert. 479 U.S. 985 (Meyer, dissenting),

Conclusion the Seattle Landmarks Preservation Ordi- We hold designating Seattle ordinance 112425 nance 106348 and First Covenant violate the Church's Church landmark Constitu- First Amendment under the United States rights Const, (amend. 34). 1, tion and Washington's art. § grant reverse and City's summary judgment We summary judgment of to the Church. dismissal

Callow, C.J., JJ., Pearson, and and J. Durham, Utter Tern., Pro concur. con- J.

Utter, (concurring) majority's with agree —I ripe declaratory clusion that this is judgment action preservation decision and that the landmark I applied cannot be to the First Covenant Church. write deci- separately to which this emphasize require facts legal sion in this case which indicate the standards such cases the future. govern should

I out, has majority designation As the the landmark points its most valu- property, reduced value of church's Since designation complete able asset. the landmark church, of this case impact has had an on the consideration is not premature. dispose argues correctly

The dissent that we should question of of the church's regulation whether state free exercise building violates the church's modifications rights by interpretation adopting defendant's changes This make to the church's any ordinance. would from the ordinan- religious purposes exempt structure procedures. ce's review that, however,

In order to do we have reach issue. controversy, presents Because the case we ripe justiciable should reach this issue. support

The dissent cites two cases to its view opinion, is neither nor See ripe justiciable. dissenting case cases found the matter both these the court v. See justiciable. Spokane Taxpayers, before it was (controversy justiciable); P.2d 480 Wn.2d Gardner, 18 L. Ed. 2d Abbott Labs. (1967) Therefore, S. Ct. (controversy ripe). 1507 the dissent's reliance on is misplaced. these cases (1)

A justiciable controversy requires existing dispute; (2) interests; (3) parties having genuine direct opposing and (4) stake; controversy substantial interests at a amena- ble to 111 judicial Spokane, conclusive Wn.2d at resolution. 96. about existing dispute This case involves an whether specific this landmark. may designated church The State has an interest in preserving First Covenant and the church has an interest it without state inter- operating ference The judiciary and without diminution value. can case, conclusively decide this as the dissent has demon- strated, respect liturgy exemption. with to the complicates inquiry justiciability dissent the into greatly by introducing concept ripeness as articulated by the States Supreme United Court in Abbott Labs. v. Gardner, supra at None prior 148-49. of our cases have cited approved Gardner or of its characterization of the ripeness doctrine. importantly,

More Gardner supports finding that case is Gardner ripe. preenforcement involved a challenge to Food and Drug Gardner, Administration regulations. 387 U.S. at 138-39. The Gardner Court held that the challenge ripe was Appeals and remanded to the Court of Third Circuit for a ruling on merits. U.S. at 156. Although the not government yet had enforced the regula against tions the drug companies, the Court held that impact regulations sufficiently "is direct imme diate as appropriate judicial to render issue review Gardner, at this U.S. at stage." Court noted purpose declaratory act judgment required judicial Gardner, See Similarly, review. U.S. at 152. landmark; church designated drug has been like com panies, obey the_challenged it must law if It constitutional. application need not await each individual restriction its constitutionality. the act before It has a challenging declaratory to the it seeks. judgment ripeness does Washington precedent on land-use cases delay has just litigant not allow us because decision satisfy pre enough injury not suffered the court. our ripe cases have claims were on vious we decided whether final, not the basis of whether the action was administrative See Estate intensity complaint. on the litigant's P.2d Cy., Friedman v. Pierce 112 Wn.2d ripe claim because (holding litigant's taking that a was remedies); Orion of a failure to exhaust administrative (1987) (liti 621, State, 747 P.2d 1062 Corp. 109 Wn.2d administrative ripe claim because further gant's taking (1988); futile), denied, cert. U.S. 1022 appeals would be 486 Kirkland, 25, P.2d Ecology v. Wn.2d 523 Department 84 of (1974) (issue ripe for review administrative because final). It has action was seems that dissent confused ripeness of church's question issue of with the whether the is claim meritorious.

II majority's The conclusion that of this ordi- application nance to this church constitutes a free exercise violation of application has correct because church shown prin- to it the value of its greatly diminishes states, con- cipal adopting City's asset. As the dissent of necessity will struction its own ordinance avoid approval of the deciding question of whether state First its violates building church's modification vio- Amendment. But the issue of whether the ordinance impact on church lates the constitution because decision. requires finances constitutional Supreme Prior to United Court's decision States Jimmy Swaggart Equalization,_ Ministries v. Board of U.S__, 796, (1990), Supreme L. Ed. 2d 110 S. Ct. 688 prohibit imposition precedent Court seemed Supreme financial on the practice burden had down a license tax on Jehovah's Wit- Court struck religious on the materials because nesses and a tax sale See of religion. these taxes burdened the free exercise Pennsylvania, 105, 166, Murdock v. 319 U.S. 87 L. 870, 882, Ed. L. Ed. 63 S. Ct. 63 S. Ct. 63 S. Ct. (1943); McCormick, 146 A.L.R. 81 Follett v. L. Ed. 64 S. Ct. 717 Because of this it appeared imposed specifi- that a land use restriction cally on a church causing gross diminution the value of its principal might asset violate the free exercise clause.9 Swaggart, Supreme Court's decision handed down after argued, this case was shows that a financial burden does not per constitute se free exercise violation. The Court upheld application of a on the tax distribution literature operations ministry. to the sales of the Swaggart It Murdock distinguished and Follett on the grounds the taxes struck down in prior those cases constituted restraints on activities.10

It went on to limit its decision leaving open argu- ment that a more onerous tax imposed upon a church could interfere with religious activity and constitute a free exer- cise violation. It had to leave argument open because in Murdock the Court had indicated that the weight sheer of a flat tax could unconstitutionally crush Mur- evangelicalism. dock, 319 U.S. at 115. precedent

Our precedent and the of the New York Court Appeals of provides guidance useful proper to the evalua- tion the effects of financial imposed by burdens land-use Scalia, Rehnquist Kennedy 9The comments of Justices and in their in dissent Bullock, Monthly, (1989) Texas Inc. v. 489 U.S. 103 L. Ed. 2d 109 S. Ct. 890 Monthly exemption demonstrate this. The Texas Court a tax for sales invalidated religious periodicals violating as the establishment clause of the First Amend Monthly, ment. Texas 109 S. Ct. at 894. The dissenters noted that Murdock and might require exemption religious periodicals Follett a tax for lest a free exercise Monthly, logic require exemp violation occur. Texas at 908. The same would upon tion land use controls churches which create a financial burden. Monthly, Bullock, supra, anticipated 10One decisions Texas Inc. v. Brennan, Marshall, development. this Justices and Stevens limited Murdock in way Swaggart Monthly, much the same as the decision. Texas 109 S. Ct. at 893. point majority Swaggart But their views on that did not command a until decision. topic This nec- on the free exercise restrictions essarily requires development state courts because a has never decided land-use Supreme United States Court Indeed, free claim.11 until involving case church's exercise involving burdens the Court had decided few cases recently as to burdens on opposed churches institutions upon Church, 97 Wn.2d Baptist See Sumner v. First individuals. (1982) (Dolliver, J., dissenting) 1, 16-17, P.2d 1358 precedents Supreme Court (describing inapplicability majority). cited Church, court supra, v. First this Baptist Sumner to a code ordinance application building

held that plurality The presented a free exercise claim. church school uncompromising practical applica- stated effect the church tion of code would to close down building Sumner, at operated school. 97 Wn.2d 7. dissent effect; instead, might it not pointed out that have Sumner, come to code. might up defendant choose to if the needs remanded the case see church's court Sumner, safety. with the need for might be accommodated at 8-10. in Murdock supports implicit

Sumner the proposition, on Follett, financial burdens regulations imposing the bur- can create a free exercise claim. Because churches much greater den this case is so than burden created Sumner, challenge imposed in we must sustain the church's in this case. practice, religious interfere with

Land-use restrictions Comment, Zoning Ordinances belief. See Free A Exer- Affecting Proposal Expanded Churches: Protection, L. But cise 132 U. Pa. Rev. Cemetery Lyng v. Northwest Indian Protective 11The decision Court's Ass'n, S. did not involve a L. Ed. 2d Ct. 1319 case, ruling Supreme for a Ninth Circuit church. In that Court overturned bidding upgrading allowing would interfere a timber harvest which road free clause The Court held that the exercise with Indian rituals linked to land. government's government-owned It is no land. thus of use of does restrain deciding in use the case at bar. religion is to some extent a communal in matter. Ritual some religions inseparable from the spiritual experience of faith. An assembly of adherents is essential to creation of a unified community with a shared spiritual life. See Com- ment, at 1149-50. The free exercise clause protects religious practice as well as belief. reasons,

For these protects the law ability church's to extent, function as an institution. To some necessarily it protects a church's Supreme finances. As the Court said in Murdock, plain "It is religious organization that a needs funds to remain Murdock, concern." going 319 U.S. at 111. If a land-use restriction interferes markedly with a church's ability perform mission, may restriction yield. (land have to See Sumner use regulation must allow church school location); to function at its present State ex rel. Wenatchee Congregation Jehovah's Witnesses Wenatchee, (1957) 50 Wn.2d 312 P.2d 195 (requiring special permit use for a church zoned out of a residential area); 82 Am. Jur. Zoning Planning § (showing that most states have zoning held ordinances severely restricting unconstitutional). church construction I think

Although that our decision in Sumner us compels in rule First Covenant's case, favor I instant write separately urge apply we a different approach future In light Swaggart, cases. we ought require very specific showing of hardship to justify exemption from land use restrictions in the future.

New York's require courts landmark designation not prevent seriously interfere with the carrying out of a church's religious and purposes. charitable See Lutheran York, Church in Am. v. New 121, 131, 35 N.Y.2d (1974); N.E.2d 359 N.Y.S.2d 7 Church St. Paul & St. Barwick, Andrew v. 67 N.Y.2d 496 N.E.2d 24 (Meyer, J., denied, N.Y.S.2d cert. dissenting), U.S. 985 adopt

We should the New York test as the means of free exercise evaluating imposi- claims land use. While tion aof financial burden does not per se create a free not allow the problem, exercise free clause does exercise religious prac- throttling to impose state financial burdens 811; Murdock, See L. Swaggart, tice. 107 Ed. at 111, at application outlawed New York cases have Instead, per the cases to land-use restrictions churches. they gen when relief of ordinances

mit from the strictures perform its ability uinely interfere with church's v. Temple mission. Westchester example, For Reform N.Y.S.2d 297 Brown, 22 293 N.Y.2d 239 N.E.2d (1968), zoning required the New of Appeals York Court requirement interfering modify authorities setback The court relied with a needed expansion synagogue. facili heavily present on the fact. . . that the "undisputed must needs of the expanded increasing ties to meet the ” its on Westchester, opinion 492. It congregation. rested See Reconstruc grounds. First Amendment also Jewish Harbor, 342 Synagogue tionist 38 N.Y.2d Roslyn (1975), denied, 426 U.S. N.E.2d 379 N.Y.S.2d 747 cert. special synagogue use (requiring permit area). residential hand, Appeals New York Court

On other alone in market value rejected argument that a decline Society Ethical free constituted a exercise violation N.E.2d Culture v. Spatt, 51 N.Y.2d (1980) ("there is no constitutional simply N.Y.S.2d 932 prop- be allowed his requirement always that a landowner Nevertheless, use"). a landmark ordi- beneficial erty's most from realizing a church applied prohibit nance cannot be if it replace building its profits sufficient to move its See Lutheran Church in becomes unsuitable to needs. York, landmark (prohibiting Am. v. New N.Y.2d at 132 demolish outmoded when church wished to designation one). and obtain a building new gross dimi- in Sumner and the uncontested Our decision justify majority's property nution the value its In light in this case. we Swaggart, apply decision should approach York to future cases. New J., Tem., J. Pro with Durham, Pearson, concur J. Utter, (dissenting) J.

Dolliver, issue before the court —The preservation whether Seattle landmarks (Seattle 25.12), Municipal authority Code under the of which the church building housing owned (see plaintiff has been declared a ordi- landmark Seattle 112425), upon nance unconstitutionally impinges plaintiff's Const, 1; free exercise amend. Const, (amend. 34). see also I art. would hold that it § does not. analysis the contrast to extended of the I majority, easily

believe the can be summarily. case decided Par- ticularly in of cases this nature the court should render a those only necessary decision on issues to decide case. the pertinent language the designating ordinance the First Covenant Church (Seattle as building a landmark 112425) is as follows: [N]othing prevent herein shall any alteration the exterior when such by changes alterations are liturgy, necessitated in it being authority understood that the owner is the exclusive on liturgy and party determining is the decisive in what architec- changes

tural appropriate are to the liturgy. When alterations by changes necessitated liturgy proposed, are the owner shall advise the Landmarks Board in writing Preservation the proposed and, nature the alterations the Board shall issue a Approval. Certificate of Prior any Certificate, to the issuance of however, jointly explore the Board and possi- owner shall such design may appropriate ble alternative essary solutions as be or nec- preserve designated features of the landmark. (Italics mine.) summary

In motion for judgment, its defendant stated: changes that First Covenant Any rior of chooses to make to the exte- religious purposes exempted structure are from approval requirement. the normal landmarks review and As written, therefore, interfere with imposed controls cannot religion. First Covenant's free exercise of (Italics mine.) statement, surely the interest of the

By this which is City interpretation has of the term plaintiff, given exception" designating in the ordinance the First "liturgical Thus, Church as a all this court need landmark. Covenant City, interpretation is do confirm done, position. to that If this is the ordinance be bound will not threaten of the building on its face would the use made or exterior of the congregation changes made or are for long any changes so as uses building this, it, as I is the real concern Since understand purposes. if the case approach adopted, were plaintiff, of the collapse. plaintiff would plaintiff may which have as to the questions As to other ordinance, justiciable there is neither a con- validity of the 111 Wn.2d 758 P.2d (Spokane Taxpayers, troversy (Abbott (1988)) ripe for litigation nor is the matter Gardner, 136,148-49,18 L. Ed. Labs. v. (1967)). requirement that the Finally, suggest Ct. 1507 S. jointly explore "shall such landmarks board the church and may appropriate design solutions possible alternative features designated necessary preserve 408) is an excessive burden on the (majority, landmark" trivialize great protec- religion" "free exercise of the First Amendment. tions This court should its

I affirm the trial court. would interpretation of Seattle confirm the opinion 106348 and ordinance hold the preservation landmarks any changes made to the First apply does "religious purposes". discussion Church for Covenant preservation by the landmarks ordi- raised other issues by plaintiff of a decision to use nance, including the effect "nonreligious purposes", should wait property sell until day. another JJ., Tem., J. Pro Baker, Smith,

Brachtenbach concur with J. Dolliver, September

Reconsideration denied 29, 1990.] 56205-9. En Banc. [No. March Benjamin of Washington, Respondent, State III, Petitioner. James Harris

Case Details

Case Name: First Covenant Church v. City of Seattle

Court Name: Washington Supreme Court

Date Published: Mar 22, 1990

Citation: 787 P.2d 1352

Docket Number: 56377-2

Court Abbreviation: Wash.