Categories: Regional
      Date: Feb 21, 2013
     Title: Federal appeals court to hear diocesan appeal of historical district designation

 

REGIONAL


(Photos by Stephen Kiltonic) 

By Father Bill Pomerleau



SPRINGFIELD – A federal appeals court in Boston will soon hear the Springfield Diocese’s appeal of a federal court ruling upholding the city’s decision to declare Our Lady of Hope Church a historical district.

John J. Egan, the diocese’s principal attorney, told iobserve  Feb. 21 that a three-judge federal appeals court panel will hear arguments in the diocese’s challenge to the constitutionality of the Springfield City Council’s 2009 action that declared as historical the closed parish church and attached rectory, but not its former school or other nearby old buildings.

The decision has made it more difficult for the diocese to control the fate of the former parish church.

Following a policy designed to limit the number of cases actually heard by the court, the diocese and the city submitted their dispute to a court-appointed arbitrator, retired State Superior Court Judge Patrick J. King.

After several mediation sessions, Judge King suggested that the dispute might be resolved if the city simply purchased the property at fair market value, possibly for use by the adjacent Edward P. Boland and Alfred G. Zanetti public elementary schools.

When the city said that it could not afford to purchase the property in cash, King suggested that it could offer to swap it for similarly-valued city property of use to the diocese. The church was open to the suggestion, Egan explained.

A city-wide study of potential properties was delayed in the aftermath of the June 1, 2011 tornado, which overburdened the city and diocesan legal teams dealing with the destruction of several of their buildings.

When the city’s planning department finally failed to identify properties suitable to the church, both sides told the mediator that their dispute remained at a deadlock.

The diocese has already submitted its legal brief in the case, while the city’s Law Department is expected to submit its brief before a March 7 court deadline, city solicitor Edward M. Pikula told The Republican newspaper.

The court case, which may be heard by late spring, will return to issues which the diocese maintains were sidestepped by Federal District Court Justice Michael A. Ponsor in his January 2011 ruling.

Judge Ponsor found that several architectural features of the church are expressions of the Catholic faith that should not be regulated by government. However, he rejected the diocese’s contention that placing prior restrictions on how the church’s exterior features could be altered was, in itself, an automatic infringement on religious liberty.

The judge ruled that since the diocese had not yet appeared before the city’s Historical Commission with a development plan for the building or its site, it was premature to judge whether any possible commission action would be unconstitutional. 

“He punted the ball,” said Egan, who wants the appeals court to rule on the constitutionality of government agencies’ pre-determining whether a church could demolish a church building because it has not found a buyer who is able to preserve its sacred symbolism.

“Why do we have to justify to a government group what is and what is not a sacred symbol?” Egan asked, referring to the process the city might use to issue a demolition permit if its Historical Commission gave the church a “certificate of hardship.”

State law instructs local historical commissions to grant a certificate of hardship “where owing to conditions especially affecting the building or structure involved, but not affecting the historic district generally, failure to approve an application will involve substantial hardship, financial or otherwise, to the applicant.”

It is unclear how the preservation body could grant such a certificate when the entire historical district consists of one building.

Egan concedes that, under state law, single-parcel districts are permitted. But he intends to question in court why the only two such districts in the city belong to the Catholic Church.

The Springfield City Council also designated the property and buildings of Immaculate Conception Parish in Indian Orchard a historic district in 2010 when the diocese had slated the parish for closure.

The diocese later reversed its closure decision, but the historical designation remains, meaning that the parish would need to seek Historical Commission approval before it moved any exterior statues or altered the garage on its property.

The city did not designate as historical the former Holy Family Church, a gothic structure located in the primarily African-American Mason Square neighborhood, which also closed in 2009.

“We have to question the motivation here,” Egan said, alluding to the contention that the historical designation was a political decision really meant to pressure the diocese into reversing its decisions to close certain parishes.

The city has denied that allegation, saying it is only interested in protecting, where possible, historical landmarks.

Elsewhere in western Massachusetts, the diocese has worked with government and private parties to preserve surplus church properties.

In 2007, when city officials in North Adams expressed concern about the possible demolition of Notre Dame Church, the diocese sold the building to the city for $510,000. The city had considerable difficulty redeveloping the property, and was not interested in purchasing the former St. Francis of Assisi Parish when it became vacant.

While a number of closed churches across the diocese remain vacant, several others have been purchased by private buyers who agreed to preserve their exterior religious features. Most of those purchases, however, involved smaller buildings.

Under church law, diocese must consider other factors besides historic preservation when it considers the fate of its closed churches.

Canon 1282.1 of church law restricts unnecessary “alienation” of church property which can “worsen the patrimonial position” of a diocese. In other words, a bishop is not allowed to give away hard assets of his diocese, or sell them at a discount to raise quick cash.

Transactions worth less than $3.5 million can be authorized by a bishop without Vatican approval, provided he first gains the consent of his diocesan finance council and board of consultors.

Mgr. John J. Bonzagni, diocesan judicial vicar, told iobserve that a land swap which truly involved property equal in value to Our Lady of Hope would be permitted under church law.

But he noted that the diocese also has a moral obligation to uphold the market value of its Armory Street property, which now belongs to Mary Mother of Hope Parish.

Diocesan officials state that while the city has begun to levy property taxes on the property, it simultaneously has placed historical restrictions on it, making it difficult to sell.

The parish is paying now paying $38,000 a year in property taxes on the vacant church. The attached rectory on Carew Street, which is being temporarily used by Cathedral High School for meeting and storage space, is not currently taxable.