Kansas Court Finds Religious Exercise Would Not Be Substantially Burdened in State Preservation Law Case

Posted on: July 25th, 2008 by National Trust for Historic Preservation

Bethany Place - Photo Credit: Kansas Preservation Alliance, Inc.

On July 21, 2008 the Shawnee County District Court set aside the Topeka City Council’s decision under the Kansas Historic Preservation Act, that there were no feasible and prudent alternatives to the construction of a new parking lot for Grace Cathedral, to be located in the environs of Bethany Place, the site of Bethany College, the first women's college in Kansas. The City had approved the project despite a finding by the Kansas Historic Preservation Officer, that the proposed project would “encroach upon, damage or destroy the Bethany Place site” because it would necessitate the removal of several historic trees and change the relationship between two historic buildings on the site and the street.

In a detailed, 57-page decision, the court sharply criticized the city for ignoring evidence that feasible and prudent alternatives to the proposed parking lot existed and for granting the permit upon the threat of litigation under the First Amendment of the U.S. Constitution and Religious Land Use and Institutionalized Persons Act (RLUIPA). Significantly, the court stated a decision to deny the Cathedral’s parking lot project would not rise to the level of a “direct and substantial burden” on religious exercise.

The court wrote:

“Here, no evidence exists before the Court that would remotely indicate that either the Kansas Historic Preservation Act, or the Act’s particular implementation here by the Kansas Historical Society, was grounded other than on the sound premise of securing historic environs for the benefit of future citizens. Accordingly, any consideration of deference to the Diocese or Grace Cathedral because of their status as religious entities would have been wholly improper considerations and would not have been a “relevant factor” in approving or disapproving the Diocese’s requested permit to build a parking lot on the Bethany Place environs.”

Pedro Luis Irigonegaray represented the Friends of Bethany Place, a concerned group of neighbors residing near Bethany Place. The National Trust provided assistance in responding to the First Amendment claims raised by Grace Cathedral and the Episcopal Diocese of Topeka.

The court's opinion is available for download: Friends of Bethany Place v. City of Topeka, Case No. 07C1195 (D.Ct. Shawnee Cty., Kans. July 21, 2008).

Local media coverage of the case is available here.

A comprehensive look at historic preservation laws and RLUIPA is available here.

Photo credit: Kansas Preservation Alliance, Inc.

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