Appeal from Superior Court, King County; Honorable Sally Pasette, Judge. Judgment Date: 8-30-93.
Durham, C.j., Smith, Guy, Johnson, Alexander, J.j., concurring. Dolliver, J. (dissenting by separate opinion), Madsen, J. (concurs in the result only), Talmadge, J., Pekelis, J.p.t., dissenting. Sanders, J. (did not participate).
DURHAM, C.J. -- Petitioner First United Methodist Church of Seattle (United Methodist) challenges a Court of Appeals ruling that permits Respondent City of Seattle (City) to designate its church a landmark. United Methodist argues that landmark designation violates the right to free exercise of religion under the First Amendment to the United States Constitution and article I of the Washington State Constitution. The Court of Appeals held that mere landmark designation of a church does not infringe on religious freedom, provided that government controls are suspended until the building ceases its religious function. That analysis marks a departure from recent precedent applying a strict scrutiny analysis and holding landmark designation unconstitutional once the complaining party shows a coercive effect on free exercise. Accordingly, we reverse the Court of Appeals and conclude that the Landmarks Preservation Ordinance, Seattle Municipal Code (SMC) 25.12, imposes an unconstitutional burden on United Methodist's right to free exercise of religion.
United Methodist owns a one-half city block in downtown Seattle on Fifth Avenue between Marion Street and Columbia Street. A church is located on the northern part of the property; on the southern part of the property is a separate building containing a chapel and community center. The church was erected in 1909. In December 1984, Seattle's Office of Urban Conservation nominated both the interior and exterior of the church for landmark designation
under the Landmarks Preservation Ordinance, SMC 25.12. The chapel/community center, built in 1950 was not nominated.
Despite fierce opposition from United Methodist, Seattle's Landmarks Preservation Board approved the nomination for landmark designation in February 1985. As a result, United Methodist was prohibited from making any alterations or significant changes to the church without City approval for the course of the designation period. In November 1985, the Landmarks Preservation Board officially recommended that the Seattle City Council enact a designating ordinance with "controls and incentives" preventing United Methodist from making any significant changes or alterations to the interior and exterior of the church without City approval unless "such changes [were] necessitated by changes in the liturgy."
United Methodist appealed to the City hearing examiner, claiming that the church suffered from deterioration and that repairs to the church would be affordable only absent government controls. United Methodist also maintained it needed a smaller sanctuary.
The design of the sanctuary prevents the Church from adapting to current Church liturgy . . . .
Clerk's Papers at 27. Finally, United Methodist argued that it should be free to designate any portion of its property for commercial use in order to fund religious and social service programs.
During United Methodist's appeal to the hearing examiner, we decided First Covenant Church v. City of Seattle,
114 Wash. 2d 392, 787 P.2d 1352 (1990) (First Covenant I). First Covenant I held that the Landmarks Preservation Ordinance, SMC 25.12, violated First Covenant Church's right to free exercise of religion. In response to First Covenant I, United Methodist moved to dismiss the proceedings before the hearing examiner. The hearing examiner denied the motion. United Methodist then filed this suit in superior court seeking a declaratory judgment to stop the landmark designation proceedings.
Subsequently, the United States Supreme Court vacated our decision in First Covenant I and remanded for reconsideration in light of Employment Div., Dep't of Human Resources of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990)*fn1 On reconsideration, we reaffirmed our original holding. First Covenant Church v. City of Seattle, 120 Wash. 2d 203, 840 P.2d 174 (1992) (First Covenant II). United Methodist then moved for summary judgment. The trial court granted the motion and enjoined the City from pursuing landmark designation of United Methodist.
The Court of Appeals, reversing in part, held that the City could enact an ordinance designating the church a landmark as long as it refrained from imposing any controls "until the structure ceases to be used for primarily religious purposes."*fn2 First United Methodist Church v. Hearing Examiner for the Seattle Landmarks Preservation Board, 76 Wash. App. 572, 576, 887 P.2d 473 (1995). Responding to United Methodist's assertion that it wanted to raze the church, the Court of Appeals held that United Methodist could demolish the building if it "replaced it with a new building to be used primarily for religious purposes." United Methodist, 76 Wash. App. at 576 n.6 (footnote 6 added
by Order Modifying Op. filed Mar. 7, 1995). United Methodist argues that this restriction is unconstitutional and that it has a right to demolish the church and sell the property for commercial development. Several church organizations (referred to herein as the Christian Legal Society) jointly filed an amicus curiae brief in support of United Methodist. The National Trust for Historic Preservation in the United States filed a brief in support of the City of Seattle.
We begin with the issue of ripeness. In 1985, the City formally nominated United Methodist for landmark designation pursuant to the Landmarks Preservation Ordinance. Once a building is nominated, the Landmarks Preservation Ordinance provides the means for the City to adopt a separate ordinance officially designating it a landmark. SMC 25.12.650. United Methodist opposed the nomination, and before the City could adopt a designating ordinance, United Methodist brought an action for declaratory judgment. The City, in its brief to the Court of Appeals, claimed that this case is not ripe for review because the City has yet to enact a designating ordinance. We disagree.
Under the Landmarks Preservation Ordinance, nomination alone carries with it severe restrictions. For example, the ordinance prohibits owners of nominated buildings from making "alterations or significant changes to specific features or characteristics of the site" for the duration of the designation proceedings. SMC 25.12.670. For over 10 years, the City has prevented United Methodist from effecting changes to the church, even though United Methodist expressed a need to fully renovate the church's sanctuary in order to adapt it to changes in the liturgy. More recently, United Methodist has argued that repairs essential to the building's maintenance are too expensive; thus, it must sell its property and use the proceeds for purposes of furthering its religious mission. Landmark
nomination, however, has prevented United Methodist from either remodeling its sanctuary or selling the church property.
A justiciable controversy must exist before this Court will review a declaratory judgment action challenging the constitutionality of an ordinance. Such a controversy exists where there is
(1). . . an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.
First Covenant I, 114 Wash. 2d at 398 (quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wash. 2d 811, 815, 514 P.2d 137 (1973)). The present case satisfies each of these four elements: landmark nomination hinders United Methodist from selling its property; a dispute exists between the City and United Methodist regarding this nomination; the dispute is not hypothetical; and the Court can reach a conclusive determination on the constitutionality of the Landmark Preservation Ordinance. As we stated in First Covenant I, "deciding whether a case presents a cause of action ripe for judicial determination requires an evaluation of 'the fitness of the issues for judicial decision and the hardship to the parties of withholding consideration.'" First Covenant I, 114 Wash. 2d at 399 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)). Since the Landmarks Preservation Ordinance already has placed constraints on United Methodist, we conclude that this case is ripe for review.
We turn now to the constitutionality of the Landmarks Preservation Ordinance as it applies to United Methodist. We originally ...