City Paper Widget

Monday, October 6, 2014

Attorney: St. Thomas Case Could Cost DC Millions

A prominent DC lawyer and expert in religious land use cases has warned that the case of St. Thomas' Parish Episcopal Church (1772 Church Street NW) could "expose the District to years of litigation, millions of dollars in damages and attorneys' fees, and the substantial likelihood of the development occurring in any event".

St. Thomas wants to build a new church here
Attorney Roman P. Storzer of the firm Storzer & Greene wrote to Advisory Neighborhood Commission (ANC) 2B/Dupont Circle in advance of their September 29 meeting on the revised historic preservation request of St. Thomas -- see SALM blog post of October 1.

The Dupont Current newspaper said in its October 1 issue that ANC1B had solicited the Storzer's opinion. In a telephone interview, Storzer said he had had no contact with the church itself and, as far as he knew, the church shown no interest in his services.

What the letter says

Storzer writes in his five-page letter to the ANC that other interests "must bend to the superior interests of the Church's constitutional rights":
In order to justify a substantial burden on religious exercise, a government entity is obligated to demonstrate that it is using the least restrictive means of achieving a compelling government interest. Courts have long held that aesthetic interests of not "compelling". Thus, opposite that is based on individuals losing their "views" or wishing to preserve ruins cannot outweigh Church's rights. Furthermore, the desire of certain third party individuals to keep using the Church's property for their own purposes ... is among the most tenuous of interests that [Storzer] has ever heard offered to justify the deprivation of constitutional rights.
The letter also says that the "least restrictive means" test also applies to the "non-religious components" of the project -- meaning, the multi-story Church Street apartment building needed to finance the church construction -- because "[w]ithout a financially feasible project, the Church will likely not be able to build a church at all."

The letter concludes
Forcing a church to maintain, at its own expense and its own detriment, the remnants of a religious structure based on the desires of a few who wish only to benefit from -- but not support the costs of -- such structure, irrespective of the church's needs, is neither reasonable nor permitted under the law.
Storzer can cite many victories

Storzer & Greene has been counsel in many successful land use actions by religious organizations, including many local cases. In the 2010 Maryland case of Reaching Hearts International v. Prince George's County, Storzer & Greene helped a Seventh Day Adventist Church receive a jury award of $3.7 million in damages. The case centered around the county's denial of water and sewer services. See an opinion from the US Court of Appeals for the Fourth Circuit upholding the jury award here.

In a separate 2010 case, Storzer & Greene represented Riverdale Baptist church, which reached a $3.25 million settlement with Anne Arundel County during the 12th day of a jury trial -- see a Baltimore Sun report here. In this case, the county refused to issue necessary permits to build a school due, in part, to increase traffic on rural roads labelled "scenic and historic".

Here in the District, Storzer & Greene has successfully represented the Third Church of Christ, Scientist (formerly at 16th and I Streets), and Fisherman of Men Church (3641 Georgia Avenue) in historic preservation cases. DC government has not had to pay settlements or awards in these cases.

However, in all cases, the churches were eventually allowed to proceed with the changes to the property as they had planned.

The 9/29 meeting and after

At the September 29 meeting, ANC2B endorsed the historic preservation aspects of the project with reservations, the most prominent of which was a recommendation that "a significant setback is established beginning at the fourth or fifth floor" -- see ANC2B's letter to DC's Historic Preservation Review Board (HPRB) here.

HPRB had a hearing on the project on October 2. Representatives of ANC2B, the Dupont Circle Conservancy, the church, and the neighbors all testified. Unofficial reports say the Board voted 5 to 3 to recommend that the church come back with an improved project. The HPRB staff report on the project is here.

An HPRB spokesman said in an email that an "HPRB Actions document, a short summation and record of the HPRB vote will be posted within a week" on the same page as the staff report -- see link immediately above.

The spokesperson also that a "archive video webcast" of the HPRB meeting on the development will be available here sometime in the next few days.


  1. This attorney's comments were roundly criticized by the entire HPRB at its recent hearing.

    1. The attorney's comments were only criticized as not applicable because the HRPB urged that the concept review is voluntary on behalf of the developers and the church and the review is not regulatory at this point (starting at 3:18:30 in the linked video of the proceedings).

  2. Here's the HPRB's official resolution:

    1772 Church Street NW, HPA 14-530, alteration and 7-story addition for residential building; new construction of church.
    The Board found the proposed reuse of the existing ruins within the new church to be an acceptable preservation treatment and the extent of alteration and addition to the parish hall would not compromise its character or constitute demolition as defined in the preservation regulations. The church building was found to be generally compatible in height and size, but that significant further design work was needed to improve its relationship to the historic district, with specific attention needed with regard to the massing, materials use, and the building’s base; it was also expressed that the church building should be more distinct and the dominant element in the overall composition. The residential building’s height, mass and architectural character should continue to be significantly redesigned to be more residential in character and secondary to the church. Vote: 5-3 (Sonderman absent)