To the Point: A prayer for preservation – Religious groups argue for a bad exemption

By John G. Craig Jr., Editor
Pittsburgh Post Gazette
Sunday, March 02, 2003

If you have read the editorial page lately, you know that the Post-Gazette is not a fan of a measure passed 6-2 by City Council last week that would exempt structures used for worship from key provisions of the Pittsburgh ordinance designed to protect historic structures and neighborhoods.

The key change would be a prohibition on nomination of any place of worship for protection as a historic building that did not come from the religious group that owned it. Under current law, any individual or institution can make nominations to the Historic Review Commission and the commission, in turn, can recommend to City Council that the designation be made law. Owners do not have either to make the nomination or to agree with it, though they can argue against it.

The newspaper thinks Mayor Murphy should veto the law and send it back to council for refinement. Surprise, surprise; so do I.

To get right down to it, historic preservation laws cost private property owners money. The government is telling a citizen what she can and can’t do with her property. If the building is registered as historic, or is located in a district that is registered as historic — the Mexican War Streets, where I lived and owned property for many years, is one such — you are stuck.

Want to replace the windows? The new windows do not have to be an exact duplicate of what was there, but the next closest thing to it. The same goes for everything else about the exterior. Maintenance costs you money; sometimes it can be a great deal of extra money if the materials involved are tin and slate and tile. There are some tax benefits for registered buildings that offset these extra expenses, but they do not fully cover them. At the end of the day, the government’s historic preservation laws use up dollars that citizens could spend for other purposes.

I dwell on this because the representatives of religious organizations lobbying for the exemptions make much of it. This is not a position that is unique to them; libertarians make a similar argument. The government is “taking” property without compensation.

Because the law on this subject is well settled and not in the libertarians’ favor — historic structures have been protected throughout the United States for decades without governmental subsidy — the local group takes a different tack:

We are a special case, they argue, different from all other Pittsburgh property owners, nonprofit or not. We are religious organizations protected by the First Amendment. When you require us to spend dollars on buildings, you are taking away dollars that could be used for social purposes or for worship. That is a violation of church-state protections.

It is an effective political argument. Given the large body of law on preservation, it is doubtful, however, that it will pass muster in federal court if this ordinance goes into effect and someone challenges it, which they will. But that aside, what is at issue here, in my view, is not the burden of extra costs in taking care of structures, but the freedom to sell them to others or to tear them down and use the land for a new purpose.

The petitioners deny this. They argue that they are not concerned about exemptions for church property that is not being used for worship or for buildings that were once active mosques, synagogues or churches and are now empty and closed. They want to be the sole designee only for buildings that are being used for worship now and will be used for worship going forward. They say they are making a First Amendment argument only for them.

I am skeptical about this, because I think the targets of this initiative are campaigns by citizens to register closed churches (or churches scheduled for closing) so they cannot be sold to developers and torn down. I say this because the law as passed by council does not make clear a distinction between a still-being-used-as-a-church and a closed-down-church. This, alone, is reason for the mayor to veto the ordinance and send it back for refinement.

When he does that, it would be good if he took up a suggestion by Councilman Sala Udin that government have a larger role in the nominating process. I do not believe the government alone should identify and nominate, but I do think procedures in Pittsburgh, as opposed to those at the federal level — where the National Trust for Historic Preservation and the Department of the Interior hold sway — could be tightened up.

In my experience, much that needs to be maintained is not being taken care of, while places of marginal significance get VIP attention. We get into a lather about a change of ownership or use of almost any sort, and will permit neighborhood groups to make the most frivolous claims for the most parochial reasons, but pay no attention to what matters most: the day-to-day grind of enforcing the laws which assure that facades and streetscapes are protected.

This ordinance, in sum, contains solutions for which there is no obvious or immediate problem by the testimony of all concerned. At the same time, council has passed up an opportunity to put in place law that would tighten up procedures that would serve us well.

This article appeared in the Pittsburgh Post Gazette. © Pittsburgh Post Gazette