California-Nevada Annual Conference of United Methodist Church v. City & County of San Francisco

Opinion

The City and County of San Francisco (the city) appeals from a writ of mandate ordering it to set aside a resolution of its board of supervisors (the board) initiating the process of designating The First St. John’s United Methodist Church as a landmark pursuant to article 10 of the city’s planning code, entitled “Preservation of Historical Architectural and Aesthetic Landmarks.” The superior court concluded that the board exceeded

Background

The First St. John’s United Methodist Church

The property known as The First St. John’s United Methodist Church, located at 1601 Larkin Street in San Francisco (the property), was constructed in 1911. The property is eligible for listing on the National Register of Historical Places and the California Register of Historical Resources. For some 90 years the property was used to conduct religious services. Due to changing demographics and declining membership, the congregation decided that it could no longer afford to maintain the property. In March 2004, the congregation merged with another local United Methodist congregation and transferred ownership of the property to The Califomia-Nevada Annual Conference of the United Methodist Church (the church), a California religious corporation and administrative arm of the United Methodist Church.

When title was transferred, the building was being used only as a daycare and children’s preschool facility. Soon thereafter it was determined that the unreinforced masonry building was unsafe for occupancy and needed significant seismic retrofitting, among other repairs. The building was vacated in 2005 and ever since has remained vacant. The church concluded “that because the congregation no longer wanted or needed to occupy the property, along with the fact that the structure was dilapidated, potentially hazardous and in need of significant structural attention, the only rational decision was to demolish the building.” According to the church’s director of administrative services, “The property has no use within the church’s mission except as an important source of revenue to be generated by a sale. The church intends to use the sale proceeds to further its ministry in the city, where it has 14 congregations.” In 2004 the church contracted to sell the property to Pacific Polk Properties, LLC (Pacific Polk), for the development of a 27-unit residential condominium project. Appropriate applications were filed with the city’s planning and building inspection departments to obtain permission to raze the property and to proceed with construction. A demolition permit has not yet been issued.

Both the Legislature and the Supreme Court were speaking of, and including within the definition of noncommercial property to which the exemption applies, property that is no longer used or capable of being used for a religious purpose but which may be sold and demolished for a profit. This understanding is made clear by the legislative history to which both the majority and dissenting opinions in East Bay refer. The exemption was inserted in the landmark statute to permit the Archdiocese of San Francisco, “facing millions of dollars in seismic retrofitting costs as well as declining attendance in some parish churches,” to close and demolish potentially nine of those parish churches. (East Bay, supra, 24 Cal.4th at p. 741 (dis. opn. of Werdegar, J.); see id. at pp. 710-711, fn. 5 (maj. opn.).) A letter from then Speaker of the Assembly Willie Lewis Brown, Jr., who authored Assembly Bill No. 133 (1993-1994 Reg. Sess.), referred to the plight of religious congregations “faced with very high seismic retrofit costs for older buildings that had been or were subject to landmark designation but could not qualify for assistance from the Federal Emergency Management Agency (FEMA).” (East Bay, supra, at p. 710, fn. 5.) The Speaker pointed specifically to “the Korean United Methodist church building [in San Francisco] that the congregation had outgrown and had decided to sell,” the offer to purchase which had been withdrawn when the board of supervisors voted to designate the building as a landmark. {Ibid.)

The dissenting justices in East Bay, who disagreed over the constitutionality of the exemption for property owned by religiously affiliated entities, did not disagree about the scope of the statutes. Their opinions leave no doubt that the exemption provisions apply to property no longer (if ever) used by a religiously affiliated owner for a religious purpose and currently being held for sale and demolition. According to the dissenting opinion of Justice Mosk, “Under the broad provisions of the statute, a church or other religious

Thus, the city’s principal contention that the statutory exemption is inapplicable because the property is not currently being used as a church or for any other religious purpose quite clearly must be rejected. The trial court found and the record contains no basis to question that the church is a religiously affiliated entity that is not organized for private profit, that the church has objected to application of the city’s landmark ordinance to the property, which it owns, and that by its explicit objections at public meetings the church has determined in a public forum that it will suffer substantial hardship likely to deprive it of economic return on its property if the ordinance is applied to the property. Therefore, sections 25373, subdivision (d) and 37361, subdivision (c) remove from the city the authorization to apply its landmark ordinance to thé church property.

In its reply brief, the city amplifies its contention with an assertion that discloses the fundamental error in its position. “The language of sections 25373 and 37361,” the city asserts, “indicate[s] that the legislature only intended to allow religious associations to exempt their noncommercial property from restrictions applicable to landmarked properties, not from a governmental process that identifies and designates landmarks.” However, as the Supreme Court held in East Bay, the exemption provisions “prohibit application of any local landmark preservation law to property owned by a religious entity that satisfies the statutory criteria through which the owner may exempt its noncommercial property.” (East Bay, supra, 24 Cal.4th at p. 702.) By adopting resolution No. 308-07, the board of supervisors took final action to initiate the process of designating the church property as a landmark. As a result, the provisions of sections 1004.2 and 1004.3 of the city’s planning code have been applied to obtain a review and report on the proposed designation from the Landmarks Preservation Advisory Board and to conduct a hearing on the proposal before the planning commission, necessary steps in the city’s landmark designation process. While the board of supervisors may never finalize the designation of the property as a landmark, the statute prohibits application of all of the provisions of the historical preservation ordinance to property that the church has taken the prescribed steps to exempt from the ordinance. Since the church has taken those steps and established its right to an exemption, the conduct of any proceedings under the city’s ordinance directed towards landmark designation of the property exceeds the authority conferred by sections 25373 and 37361. Simply as a matter of common sense, there is no point in pursuing landmark

On balance, the record fails to establish that the initiation of the landmarking process has thus far caused delay in the completion of the permit process for the project, and future delay is at most speculative. However, since continuing with the landmarking process cannot possibly lead to valid restrictions on the church’s ability to demolish the property, the absence of demonstrable hardship to the church is offset by the absence of any potential

The city’s position is no stronger when its argument is viewed in terms of ripeness. The city relies heavily upon Pacific Legal Foundation v. California Coastal Com., supra, 33 Cal.3d at page 171, in which the Supreme Court held that a facial challenge to public access guidelines adopted by the California Coastal Commission was not ripe for adjudication, embracing the test adopted in federal courts requiring the court “ ‘to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ ” The court found the challenge to the public access guidelines not fit for a judicial decision because, as the trial court had held, “it could not decide the validity of the guidelines except when faced with a specific exaction.” (Id. at p. 170.) The court observed, “the ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” (Ibid.) Moreover, the adoption of guidelines, without the imposition of particular dedication conditions pursuant to those guidelines, did not threaten property owners with immediate hardship. (Id. at pp. 172-173.) The situation is very different here. There is no lack of concreteness to the issue of whether the city may apply its ordinance to the church property. The question does not turn on the validity of particular restrictions to the use or demolition of the property that may result from landmark designation. The church’s position, which we have determined to be correct, is that the city has no jurisdiction to subject the church property to the ordinance regardless of the particular restrictions that may result, or whether any restrictions result, from application of the ordinance. Hence, the matter is ripe for adjudication, whether or not deferring a decision would result in any hardship.

Finally, we need not be concerned with the city’s last argument, that Pacific Polk has no standing to litigate the application of sections 25373 and 37361 to the church property which it does not yet own. Pacific Polk argues that it is nonetheless interested in the matter by virtue of its agreement with the church to purchase the subject property. We see no need to determine whether this financial interest is sufficient to confer standing in this particular litigation, since there is no question about the standing of the church and the outcome of the litigation will be no different whether or not Pacific Polk is