DIOCESE OF NEWTON MELKITE CHURCH

v.

CITY OF MIAMI, A MUNICIPAL CORPORATION

J I he Miami City Commission. _ Amy Bouiris, Esq. and Joan Mu11i_z, Esq. of Gunstm Yoaklsy ' Attorney for Respondent _ J01111 Grcco, Esq. Deputy C1ty " Before BERNARD SHAPIRO, DAVID C. MILLER, and MIGUEL DE LA O, J]. ASE NO. 130306 ‘II33 5? 9Q?I Hd r"’f' rs‘: =1-:1 FF? ¢’§ ‘E-!s‘* DE LA 0, Judge. ' ' ‘ ' filed by the Diocese ofNewton tition Before this Court is a pe _ Cl IIC-I1'(“D1006‘§€‘»”). The Dioces A Miami City I ' Church for wnt ofceflioran e asks this Court to quash the Melkito _u . _ si 'udiciaI decisioo to designate St. Jude Mclkitc Cathoho Cornmissiolfs (“City”) qua -_] _ u V" ' ' cl uash {he City’s_deci$ion. (“St. Jude”) as a local hiSI(_J1‘i0 gite. W6 grant tho D1ocese’s writ an q wéowfmwfififi ZS mo [*2] G9-16-’ 1 4 V1223 FRQIIF T-494 P00l}2,I"OU'i 7 F-BB³ 1 age 4 or 1 1 _ muse mu. 1.3-J4) nr

I.

BACKGROUND.

St Jude is located at 1501 Brickell Avenue, Miami.- Framed by Brickell Avenue’.s modem high-rise residential towers and :1" landscaped courtyard, the sixty-eight year old church and its garden occupy a one~acre strip ofVery expensive real estate in Miami. “Today the Church assembles more than 1,000 worshipers on a lgiusy Sunday or feast. day, and legularly involves more than 1,000 families." City ofMiami Historic and Environlnental Preservation Board, Designation Report (March 2013) at 16 (“Designation Repo1t”).l Reverend Damon Geiger, the pastor ofSt. Jude, appeared at the July 25, 2013 Public Hearing held before the City I (“Public Hearing”), and testifieth. . Each day‘St. Jude Parish iS Open from 7:00 in the rooming until atleast 6:00 at night, and sometimes later. The church is never - empty ofpeople. There are always people who are there who come to pray, meditate, light candles, experience God, and they ~ come to invoke the aid of St. Jude. They seek to have their . baptissns and weddings there because it’s the shrine of St. Jude, a much loved saint. Over 15,000 people usually eome on his Feast Day in Ootober each year to our parisll. . . . People do not come as sightseers for the beauty ofthe structure as tourists, students ofarchitecture and history. They come to pray. ' ‘ i= * * . . . [l]t’s a Melkite Greek Catholic Parish Church. There are ' presently only two Melkite Catholic parishes in Florida, and Only about 45 in the Whole country. - The present parish membership is rapidly expanding, more than any of our sister parishes in the United States. . . . We must have - the freedom to one day expand the church building for our needs if it becomes necessary. ' ' Transcript ofPublic Hearing at 69-70. ' This is the only referenee to thereligious significance of St. Jude in the Designation Report. [*3] I A \ .--.-_._--.-_-__._.__ l I 09-16-'14 14:23 FROt‘4— T4194 B f2003,£O0'! 7 F-663 A.\'\E,v-:04‘;

\(l'lU ||.l.-Q" L-|l'\.l' In August 2012, rumors began circulating among St. Jude’s parishioners that the Diocese had Plflllfiiv S611 31- Jude-2 The rumors prompted rt group ofcurrent and former parishioners to seek St. Jude’s designation as a historic structure — in an attempt to block any sale ofthe property — pursuant to the City’s Historic Preservation Ordinance? Miami, Florida Municipal Code, Ch. 23 et. seq. (the "Ordinance”). Under the Ordinance, any person may file a petition for review by the City's iiistolic and Environmental Preservation Board (“Board”) to determine ifthe City should consider an individllai property for historic status ~— with or without the consent ofthe plorclty ownon See Ordinance, § 23-4(c)(1). The Diocese opposed the petition for designation. - In February 2013, the Board, in response to the petition for designation, authorized a - preliminary evaluation to determine whether St. Jude met the criteria for eligibility, and ~ ' instnloted its staffto prepare the Designation Report with recommendations. After reviewing the proposed Site, the Board’s staff deemed St. Jude historically and architecturally significant and recommended it for historio designation. The staffidentified as notable the church’s Romanesque style, built on a cruciform cross plan, an nrclliteetural style reflecting the 10th oentury Renaissance period and embodying a period ofrevival and reformation of ecclesiastical designs. The staff found ofparticular significance the architects F l who designed the church, i.e. , the arcliitectilral firm ofHenry Dagit and Sons. The Piuledeipliia film Sjieeialiiaes in designing ecclesiastical buildings for the Catholic Gh\l1‘0l1. Various architectural magazines have featured the fimfs work, although no articles were identified featuring St. Judo. 2 Wiifliilfil‘ these mnlors are or were true is not relevant to our consideration ofthe W1-it.³ The parisliioners who sought the historic designation of St. Jude are hereinafter referred to as the “Petitioning Parishioners.” There is 110' indication in the record whether the Petitic_|ning_ Parishioners represent. a minority, majority, or plurality of St. Jude's parishioners. K [*4] 09—’18—”I4 14:24 L3-*.$.L3 Specifically, the Desigliation Report mentioned Operation Ped1‘O Pan and an ali~gi1'ls academy established and operated for 30 years by the Sisters ofAssuinption, a Catholic Order originating in France and based in Philadelphia (the “Aonden1y”).⁴ See Monsignor B.Walsh, 13 _JoU1n~IAz, or INTERAMERICAN STUDIES /two Worm) AFFAIRS, at 378 (1971) (available at _ l1ii}l2// igtg/discover/1 0.2307/1 'l4929_‘Zuid='3'739600&nid:-=21 34&nid=2&\1id=’lt)&uid=_{t_ &uid=3'739256&si(t#Q_1Q4S41179717) (lastvisiteci August I9, 2014).5 Id. at 15. “[I]n 1978, the school’s ground and buildings were solci to a New York investor that demolislied the school to build a 41 -story luxury condominium.” Id.6 However, the Board's rules require a minimum of 5 4 For a briefhistory of Operation Pedro;__Pan, see “The Miami Diocese and the Cuban Refugee Crisis of 1960-1961,” TEQUESTA (Issue LXL 2001) (available at Intga://www,1rist_oi:ymia1i1i.org[research—miami/publicstionsitgntesta/teq@sta¢2Qt_1Q;3g)~Lt)_) (last visited August 19, 2014). 5.i1"hc relevant portion ofthe Monsignor’s article is quoted in the Designation Report at 13. 6 The Designation Report noted other events and eminent persons associated with the academy which have shaped the character of the Miami community- but all were associated with either the academy (a structure not at issue before us) or St. Jude’s as a church, not as an architectural or historical structure. See Designation Report at 12-14. ' [*5] __,__.,__._...-._. 09-’1B—’ ‘I4 14:24 FROM— T—-494 P0005/O01? F—668 1‘ G50 J UI. I I \.-i1SGNU- 1D"JLJ MI’ votes to approve rt structure for historic designation. As a result, the Boa1'd’s positive vote actually constituted a denial. The Petitioriing Parishioners filed a timely appcai to the City. In Joly 2013, the City heard the Petitioning Parishioners‘ appeal and oveitumed the Boa1'd’$ 4-2 decision. The City passed Resolution 13-0306, which reversed the denial of designation issued by the Board and designated St. Jude as a“loca1 historic site.” The City did A not make any findings of its own; it relied exclusively on, and ariopted as its own, the Designation Report’s findings that St. Jude (1) has historical and arcltitectoral significance, (2) possesses integrity in design, setting, materials, workmanship and association, and (3) meets the criteria for designation, 1'. e., criteria 3, 5, and 6 ofsection 23-4(a) ofthe Ordinance. The Dioccsc, as the owner ofthe property, filed the pendiltg petition for writ ofcortiorari. - 11'. 'rnn WRIT. ' A The Diocese asks this Courtto quash the City’s decision designating the church as historic for two reasons. First, the Diocese arguesthe City tnisappiieti the special eligibility criteriawhich must be met for historical designation ofreligions properties. The City‘s historic designation ordinance expressly excludes properties owned by religions institutions or used for religious purposes unless the religious property derives itsprimary significance from its architecture, artistic distinction or historical importance rather than its religions purpose. This criterion requires a comparison of the site's religious importance versus its historical or architectural importance. St. Jude is owned by the Melkite Catholic mission and is continuously used for religious purposes. The Diocese contends that St. Jude, as an active, tiniving, and growing parish, derives its primary significance from its religious mission rather than any association with the historical or architectural trends ofthe community. The Diocese contends the City failed to perform such a comparison and, therefore, it failed to abide by the essentiai requirements ofthe law. [*6] . t it tz \ i _—v.-.-.-.- i I 09—16~’ 14 14:24 FROi\‘i— T—494 P0606/O01? F-668 -I n5\-I v vs A 1 \_-M50 H0. LJ-‘Jib-J Ar Second, the Diocese argues that the City’s findings are not supported by competent and Substantial "evidence because they are grounded in the historical significance of a strucmrc ~— the Academy ofthe Assumption~ which no longer exists, and has not existed for over 30 years, rather than on the historical significance of St. Jude. -

III.

STANDARD OF REVIEW.

-In reviewing the City’s decision, this Court cnlpioysa three-prong standard ofreview - applicable to quasi-judicial decisions rendered by local bodies. The three-part test consists of: (1) whether procedural due process was accorded, (2) whether the essential requirements of the iétw have been observed, and (3) whether the administrative findings and judgment are supported by competent substmttiel evidence. Fla. Power & Light C0. v. City 0fDrm-ia, 761 So. 2d 1089, . 1092 (Fla. 2000); Haincs City Community ‘Dev. v. Heggs, 658 So. 2d S23, 530 (Fia. 1995). We ‘-‘ first that the City‘s decision was not in accord withthe essential requirements oftlte low. Independently, we hold that there is a lack of competent substantial evidence to support the City’s decision to designate St. Jude as historic.

IV.

THE CITY FAILED TO APPLY THE CORRECT CRITERIA FOR

DESIGNATING AN ACTIVE CHURCH A HISTORIC STRUCTURE.

We find thatthe City failed to conduct a comparative analysis of St. Jnde’s historic importance ve1'.s‘t4.$‘ its religious significance. As such, the City failed to address the “primary - significance” criterion, a critical prerequisite before a religions structure can be designated as historic. [*7] l l O9-18-3.1% .s=25 so T_49'5aove9\9OaZ£1_E9:11Zl'F-Be

A.

THE ORDINANCE -REQUIRES A FINDING OF PRIMARY

SIGNIFICANCE W’!-IEN APPLIED TO PROPERTIES OWNED BY

RELIGIOUS INSTITUTIONS.

' V The Ordinance authorizes the City to designate and list as landmarks certain sites, bliiidlllgsi 3lT"l1¢lll1'¢B find properties of significant historical or architectural value for the purpose ofpreserving exceptional properties which embody the heritage 0fMiemi. A stiucture merits ' lsudnlmk designation ifit “possesses integrity oflocation, design, setting, lnaterials, workmanship, feeling, and association,” and meets one or more delineated criteria, including an association with significant historical events or historical figures, embodiment ofdistinctive 00l18tfl10ti011 ¢11fl1't10t¢1"iBti0B, the work of a master, or yielding infounation important to history or prehistoly. Ordinance, § 2.3-4(a). " . ” Ofparamount importance to o11r'discussion here, properties owned by religious ' institutions or used for religious puiposes are ordinarily ineligible for historic designation unless the religious property derives its primary significance from its architectural or artistic distinction or historical i1nportance.⁷ Ordinarily . . Q properties owned by religious ‘ ' institutions or used for religious purposes, . . . shall not be considered eiigible for listing in the Miami register ofhistoric places. However, such properties will qualify for designation . . . if they fall within the following categories: _. see (7) A religious property deriving primary significance from e architectural or artistic distinction or historical importance. The ordinance sets forth another exception which allows for ti religious property to be designated as historic, but that exception is inapplicable here. [*8] We-33¢ ;n=.2.:> so T-49&neFP|.€)\9.q.%Z.9AQJ1ZLNFee Ordinance, § 23-4(b)(7).3 The Designation Report, and the City. 1'¢¢0gI1iZ¢Cl T116 11664 f01"!1‘~° City to apply the “primary significance” test to the desigtiatioii of St. Jude. Designation Report at 6; Transcript ofPublic Hearing at 101-O2; 23365. The Ordinance docs not delineate how to tlctermine “primary significance.” However, it iso fundamental principle of statutory c01tsmtction- that all words imist be given meaning. See Sch. Bil. ofPalm Beach County v. Survivors Charter Salt, Inc, 3 So. 3d 1220, 1233 (Fla. 2009) (“Basic to our examination of statutes, . . . is the eletiieittary principle ofstiitutory constmction that significance and effect nmst be given to_ everyiwoid, phrase, sentence, and part ofthe statute ifpossible, and words in a statute should not be construed as mere su1plusage.”) (citations omitted). Tlierefore, it is insufficient for theCity to find St. Jude has historical or arcliltectnml significance. Such an application ofthe Ordinance’s criteria would give meaning only to the temi “significance,” 1'ei1dei‘ing the tenn “primary” as mere surplusage. The Ordinance recognizes that a reiigious structure being considered for designation may l have historical and architectural significance in addition to religious significance. The Very point of section 4(b) is to prevent the designation of a reiigiotis site whose religions significance exceeds its secniai: significance. Therefore, to qualify for designation, St. Jude’s historical 01' arcititecntral significance must exceed its religious significance. " To determine the pl‘lH1fll'y significmice of St. Jude, it logically follows that a comparison ofthe various factors must be made to determine which is primary. If St. Jude today derives its I prirnary significance from its religions nature, then the City’s designation would be erroneous - regaidless ofthe historical and architectural significance ofSt. Jude to Miami. 8 The criteria set forth in the Ordinance is in all material respects identical to the criteria used by -the federal governinent to include sites on the National Register ofHistoric Places. See 36 C.F.R. § 60.4. See also Metro Dada County» v. P.JE Birds, Inc, 654 So. 2d 170, 176 (Fla. 3d DCA 1995) (applying standards developed by NationalPo1:k Service to interpretation ofmeaning of Dede County Historic Preservation Ordinance which was patterned after 36 C.F.R. § 60.4). [*9] 09~’i8—”l4 14:25 FRUPl— T—ii94 PO0O9,1'00'|7 F-688 P356 § Ul 1 I \./GOV l.‘\U¢ I--J"<Jl-J I11 National Park Service, How to Apply the National Register Cr-itqriafor Evrtluariorr, NATIONAL REGISTER BULLETIN (available at hlfigjl/_§4l_I}&T\V.l1pSgtg;0V/I1t[§)ul)liQ&llt)1lSI'b1Iil6li1l$lll=1&$/ml)15.p(iQ (last visited August 29, 2014). It lists several examples of religious stmclltres dfielllfid K0 Lantemsfwei-e hung from its steeple signaling to Paul Revere whether the British were approaching by land orby sea. - The Mount Bethol Baptist Church-in Washington DC was, in 1875, the Site of the first congregation offormer slaves. That church is also linked to Martin Luther King, .lr.’s civil rights movement. V 0 . The Baltimore Cathedral, built in 1802, is the first cathedral constructed in - America sud deemed £1. worlcbfamous example ‘of 39th Century lncmmlental ascliitecture. See C. Sprculc, Federal Funding For The Preservation OfReligious Historic Places: Old Federal Funding For The Preservation OfReligious Historic Places: Ola‘North Church And The New Establishment Clause, 3 Geo. J. L. 8e Pub. Pol’y l5l, 155 (2005). These examples of extraordinary historical events are significant in American history, and the religious-property’s historical significance overshadows and eclipses the religious aspects ofthese churches today. As a result, federal authorities have upheld the validity ofthe historic designations of these churches even though they are cuirently, actively, and continuously used as houses of worship. ' The Office ofLegal Counsel ofthe U.S. Department of Justice has endorsed the use of federal historic preservation grants for active houses ofworship; iejccting the suggestion that the mere use of a church as its planned function constitutes its "primaiy significance.” See M. Edward Wlietan, III, Authority ofthe Department ofrhe Interior to Provide Historic Preservation Gmm‘s to Historic Religious Properties Such as the OldNorth Church (April 2003) [*10] 09-1 6—’ 14 14:28 FROi'»’i— "(-494 P0010/O01 '1' PGQG 1U OI 1 I \.,uso mu. l.J'J|C1J nr (available at littn://wwwgustice.govlolclopiniondo.cslop-olc~td)g'_Igp0091qtdt) (last viewed August 19, 2014). Therefore, requiring _that the structure be void of any and all religious import or function is not a requirement which would render a church ineligible for historic status, contrary to the Diocese’s contentions. I ‘

B.

CITY FAILED TO FOLLOW ESSENTIAL REQUIREMENTS OF LAW.

The City determined that St. Jude embodies distingtlishing architectural characteristics and sufficiently cormnemorates the City’s history to warrant dcsignat.ion. The City found that many ofMiami’s significant historical events, persons, ideas, or ideals have evolved in and around St. Jude. Designation Report at 19. In effect, the City claims St. Jude played central roles in the historical development ofMiami. Examples cited by the City ofthe churclfs deephistorical roots include its involvement in the arrival ofunaccompanied Cuban children to Miami via Operation Pedro Pan, the education ofwomen via Sisters ofOur Lady ofAssumptiorrs Catholic school for girls, and the harboring ofexiled Cuban Catholics such as the Carmelita Sisters of Cuba. Id. The Designation Report also addressed notable construction techniques, represenitisg the works ofmaster ecclesiastical architects, and identified key architectural features ofthe church which embody architectural styles ofthe period. » ' ' We do not review these historical or architecttrral claims for accuracy 01‘ significance, as neither ofthose issues is properly before us on ccrtiorari review. The issue before us is whether the City applied the “primary significance” criteria. We find the City did not because it failedto address whether these contributions and attributes override St. Iude’s religious significance. Regardless ofhow lengthy £1 report the City relics upon, 01' the depth ofits discussion of St. Iude’s architectural and historical significance, the City cannot satisfy the criteria set forth in the Ordinance if it does not compare those factors to the chnrcifs religions significance. See Irvine F-668 [*11] 08-1 6-’ 14 14:26 FROI'»i— F494 PO01 '1 /O01? F-663 1 “av A l UL 1.; _ \.r!IbU P10‘ .lJ“-JAJ Iii." v. Duval County Planning Comm 71, 466 So. 2d 357, 366 (Fla. lstDCA 1985) (“Regardless of which party bears the burden ofproof, an agcncy’s failure to make adequate findings of fact in its order constitutes a depamlrc from the essential reqnirernents oflaw.”) (Zelnner, J. dissenting), quashed, 495 So. as 167'(Fla. 1986)(approvix1g Judge Zehlnefs dissent).° The record before us is devoid ofany comparative analysis ofSt. Jude’s religious importance versus its historical and architectural importance. The Designation Report section _ applying the criteria for designation is a page and a half long. See Designation Report at 19-20. <- It makes the conclusory claim that “Saint Jude Melkite Catholic Church derives its primary importance fitom its arclritectural, artistic and historical significance as it relates to the historic ' heritage ofMiami,” without a single word comparing this significance with the c1nn'ch’s religious purpose. Indeed, the 27 page Designation Report devotes only two sentences to the religious significance of St. Judo’s today- and none comparing its religious silgnificance to its ‘ architectural and historical sigt1ificance.‘° This failure is fatal under the Ordinance and compels V us to conclude that the City did not follow the essential requirements ofthe law. 9 The City should make its findings detailed and specific. Reeitations ofcriteria, with conclusory statements that St. Judo meets the criteria for designation, are unhelpful on certiorari review of quasi-judioiai actions. - ' It would not he proper for this Com’: to delve into the l1'£11‘l$o1'ip't of the testimony “in order to resolve opposing contentions as to what it shows or to spell out and state such conciusions offact as it may permit.” Moreover, it would be anunduc burden upon this Court to do so because Order No. 5434 lacks the basic or essential findings, as opposed to recitations, to support it. Ryder TmckLines, Inc. v. King, 155 So. 2d 540, 541 (Fla. 1963). 1° By comparison, the transcript ofthe lengthy public hearing held by the City is replete with references to the religious significance of St. Jude. Matty speakers suppotted the church’s historic designation based on their vivid and fond recollcctiorls of“weddings and bnptisms, and rnemorials, and healing masses, and Sunday Resun'fect.i0ns.” See, e.g. , Transcript ofPublic Hearing at 3t); 39; 132-33; "179-81. It is revealing, in light ofthe faet that the City was suppose/J [*12] <19-'1@:ic-2so FR@M- T-tstursststsstl F-668

V.

THE CITY’S DECISION IS NOT SUPPORTED BY COMPETENT

SUBSTANTIAL EVIDENCE.

Even ifthe City had applied the correct criteria, the City's claims of historic significance pertain to a structure that no longer exists — the Academy. As detailed in the Designation Report, - ill 1973, ills Academy, once located on four ofthe church’s five acres ofproperty, was sold to a New York investor who demolished the academy and constructed a 41~$to1'y luxury condominium. Designation Report. at 15. There is no evidence in the record about what secular _ role, ifany, the remaining church structure (the only one at issue here) played in Operation Pedro Pan, the education ofwomen by the Academy, or the harboring ofexiled Cuban Catholics such‘ ~ asthe Csnnelite Sisters ofCuba.“ Since a site’s historic signilicance isembodied in its association with actual ttchievements, raring a building destroys the propc1'ty‘s significance and .- association with historic events and persons. In fact, the City’s Ordinance specifically excludes designation ofbuildings that have been moved from their original iocation or reconstructed. Ordinance, § (4)(b). When a building is razed, its historical significance does not transfer to adjoining structures. In this case, the 19?8 razing ofthe"Academy casts serious doubt as to the historic significance ofthe retnaining property. There is no basis in the record to support a claim -that the surviving property has retained the identity for which the all-girls academywas cteomed by the City to be historically significant. As such, there is an absence ofcompetent substantial evidence supporting the City"s designation of St. Jude as historic. to he determining Whether St. Jude’s primary significance today is religious or historic, that so many speakers referred to religious ceremonies. 1' The evidence in the record actually (and strongly) suggests that it was the Academy, not its . chapel, which played 'a role in these events. See 'l‘est.irnony'ofEllen Uguccioni, Chair ofthe Florida Historical Commissionfs National Register Review Board, Transcript ofPublic I-learing at 109 (“eve1'ything that has heen said about this property that I’ve heard tonight has been the association with the School ofthe Asstmiption”-which has been demolished). [*13] I es-is-j__1g _td4_=_2v FROM~ t»4s3‘Mag91§_gcg:l_F-see We cannot forecast what evidence would qualify as competent and substantial evidence of St. Jude's historical significance. Asoribing historic significance to asite is always a subjective endeavor. The Federal guidelines for application ofnational historic register criteria " are not subjective, however. They are highly instructive -.- ifnot binding — in interpreting the . Ordinance. These guidelines provide that “[t1] religious property cannot be eligible simply because it was the place ofreligious services for a community, or was the oldest strtwtttte used by a religious group in a local area.” National Pnrklfiervice, How to Apply the National Register Criteriafor Evaluation, NATIONAL REGISTER-BULLBf£1N at 27 (available at littp://Wwwtlps.govlnyfptlblicalions/buiieiinslpdfs/nrbl5.pdf) (last visited August 29, 2014). Under eertiorari review, “the evidence relied upon to sustain the ultimate finding should be"sufficiently relevant and material that a reasonable mind would acceptit as adequate to ‘ support the conclusion reached.” DeGr00z‘ v. .S'he)_72eIrI, 95 So. 2d 912, 916 (1957). We cannotreasonably accept the City’s decision to designate St. J11de’s as historic when it is clear on the record before us that the pr0pe1ty’s historic integrity was fatally compromised since the time of its alleged historic role. _ .

VI.

CONSTITUTIONAL CONCERNS.

St. Jude argues persuasively that the City's findings are mere rote repetition ofthe factors listed in the City/‘s historic preservation ordiltance. For the reasons already set forth, we agree. The City has a responsibility to do more than sot forth es its findings conclusory restatements of the criteria set forth in the Ordinance. There is a very good reason why religious properties are -not ordinarily subject to historic designation. As the DesignationReport recognized: A religious property requiresjustification on arcltitecnlrai, artistic, or historic grounds to avoid any appearance ofjudgment by ' ' governmciitabont the validity ofany religion or belief. [*14] 09-18-4114 1t=27 tron T-49¢ P0ot§,r_c_q1_iH F-see Designation Report at 6. Congress has recognized that even “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. § 20001113 (1993). From the earliest days of our republic the Supreme Court has recognized that the power to tax is the power to destroy. See M’CuIl0ch v. Marjvland, 17 U.S. 316, 327 (1819) (“A11 unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation”). See also Murdock v. Pem2.s'ylvania,,63 v . S. Ct. 370, 874 (1943) (“Those who can tax the exercise ofthis reiigious practice can nmke its exercise so costly as to deprive it ofthe resources necessary for its maintenance”). When a property is designated historic, it is subject to regulations and requireinents which do not afflict non-historic properties. See E. BayAsian Local Dev. Corp. v. Calif, 13 P. 3d 1122, 1133 (Cal. 2000) (designating a religious entity’s noncontmereial property as a landmark “may burden [free exercise ofreligion] right, [therefore] an accommodating exemption is a ‘ proper, constitutionally perntissiblc, secular purpose. The exemption in question here seeks only to relieve religious entities ofa potential burden on free exercise?) (citation omitted). _ Although listing on the National Register does not itself trigger any federal regulatory restrictions, numerous states and local goveitmients impose extensive restrictions on historic properties. See, e.g., Daniel R. Meiidelker, Land Use Low §§ 1i.22—11.34 (3d ed. 1993); Christopher D, Bowers, Himforic Preservation Law Concerning P!'iv¢:zte Property, 30 Urb. Law. 40$, 409 (1998) (“Many historic preservation ordinances (or state law) require a person to obtain approval fiom either the local conuuission or the governing body ofthe city or county to alter ti historic property, or - the exterior of a structure on that property, or to place, construct, . maintain, expand, or remove a structure on the p1'0pe1'ty.”). See M. Edward Whelan, Ill, Authority ofthe Department ofthe Inferior to Provide Historic Preservation Grants to Historic Religious Properties Such as the Old North Clnnch, at 96 11.5 l .. - A (April 2003) (available at http://wwW.j3_.1stlce.gov/oic/opiitioniiooqopy ole 1,/_(_)_27 110091 .ptii). [*15] 09-16-’ ‘I4 1 Ii :27 FROP [*1] F494 P0015/001 Tr‘ F-668 8 95v 1.1 u‘ 1 r ' \_,q,§\.- nu. .l\.l‘n)P\l Int These concerns are heightened when the structure at issue is a church. The designation of St. Jude as a historic structure can affect the churclfs ability to <.-any out its religious mission ifit is required to divert funds to pay for the increased expense ofmaintaining a historic structure. See Transcript ofPublic Hearing at 68-'71. Such a result has serious First Amendment implications. Ofeven greater concern, again in the context ofthe First Amendment, is the fact that the church structure was built origiruxlly as a Roman Catholic chapel but is now aMelkite Greek Catholic Church. As a Meikite Byzantine church, St. Jude has structural needs and religious obligations which differ from the Roman Catholic rites.- See Tramfcript ofPubIic Healing at 57-58; 67; '70-71. Designating St. Jude as st historic site runs the risk ofexcessive entanglement by government with the free exercise ofreligion. - We are‘not implying that the Cityis attempting to impose such burdens on the Diocese in order to hurt its religious mission, but rather that the unintended consequences ofhistoric designation can impose such burdens. Therefore, the City mustbe careful to apply scrupulously the criteria. set forth in its own Ordinance, and not simply utter the magic words it believes might Satisfy appellate review. To do otherwise, weakens the “primary significance” test. .Without the “primary significance” test, there is greater danger ofexcessive entangiement in colitravention of the First Amendment, or of a govermnent entity wielding historic designation someday as a cudgel against a religion ofwhich it disapproves. See, e.g., Temple B ‘Na/i Zion, Inc. v. City of Szzmzy Isles Beach, Fla., 727 F. 3d 1349, 135263 (1 ith Cir. 2013) (“Temple alleges that in response to its renewed interest in expansion, the City recloublcd its cffons to designate the Temple a historic site.”). If government action burdens the exercise ofreligion, but the State l ' l demonstrates that it has ti compelling interest in enforcing its enactment, that interestwill justify the infringcntent ofFirst _Amcndment rights. The State, through its police power, may regulate the use of land. Lu11dn1aI'k preservation laws enacted pursuant to legislative mitltority regulate land use by conserving [*16] O9-l6—’ “l4 14:28 We hold that the City’s interest in presewatio¹¹ of esthotic a11d.hi$to1‘iC- structures is not compelling and it does not justify the infringement of First Covenanfs rightto freely exercise religion. The possible loss of significant architectural elements is a price We must accept to guarantee the paranionntright ofreligious freedom. First Covenam‘ Church ofSeattle v. City ofSeattle, 840 P. 2d 174, I85 (Wash. 1992) (citations omitted). See Society ofJesus cfNew England v. Boston Landmarks Comm ‘n, S64 N.E.2cl 571, 574 (Mass. 1990) (“The goveiiunent interest in historic preservation, though worthy, is not sufficiently compelling to justify restraints on the free exercise ofreligion, a right ofprimary importance. In short, under our hierarchy ofconstitutional values we must accept the possible ioss ofhistorically significant elements ofthe interior ofthis church as the price ofsafeguarding the right ofreligious freeciomi’). On the opposite end ofthe spectrum is the concern that to counter the expense associated with maintaining a structure designated as historic, the Diocese may apply for certain government grants.” If St. Jude’s primary significance is religious, awarding the Diocese _ ‘é0V¢I‘l1fi1¢11l filildfito assist with its nlaintenanee would run afoul ofthe Establishment Clause of the First Amenclment. This was exactly the issue addressed by the Office ofLegal Counsel for 12. To be sure, historic designation can also benefit a church. ' [Allthough landmark status is restrictive in a certain sense, it is also a'privileged status that may enhance a chureh’s ability to carry i out its mission and protect itselffrom encroaching clevelopnlent. Many churches, in fact, do not oppose desig_natlo¹¹,' and even seek out landmark status for its positive effect on the cl1urch’s1ninist1y. First UnitedMethodist Church ofSeattle v. Hearing Exam ‘rfor Seattle Lcmdmork.r Pres. Bd., 916 P. 2d 3'74, 381 (Wash. 1996) (quoting R. Bonds, Fire! Covenant‘ Church v. City 0f»S'em‘lle: The Washington .S'upr-erne Court Fortifies the Free Exercise Rights ofReligious Lanclrnarks Agltinst Hilrtoric Preservation Restrictions, 2'7 GA. L. REV. S89, 615 (1993)). [*17] on-1671131 14:28 FROM— b T—494 _r§ovo13jJqq1Z_ F-668 The Depflflment Ofthe Irlierior in_20'03. See M. Edward Whelan, III, Amhorizy ofthe Department ofthe Interior to Provide Hi.s'z‘or'ic Preservation Granrs to Hiszoric Religious Pr0p€I‘ll€S Such as the 0lc1North Church (April 2003). The Office ofLcgai Counsel concluded that so long as the primary significance criteria for historic designation ofreligious properties set fo11h in 36 C.F.R. § 60.4 is followed, government aid to a historic ciiufch stmomre would not run afoul ofthe Establishment Clause. This is all the more reason why the City, as_ well as this Court, must be “ 1'igo1‘0us in its application ofthe “prilnary sigliificallce” test.

VII.

CONCLUSION.

' For these reasons, we grant the Diocese?s Writ, quash the City Conm1issi_on’s decision, and remand this niatter to the City Connnission for further consideration consistent. with this opinion. MILLER, I. and SHAPIRO, J. concur. _ _ ,........__ __..,--P‘ " *~. - '\ . """"'I ~ "- *or\'m .--~ .,_-_..h. BERNARD s. .s1~1APm D C.'MIL -Mic; =L iii. Cir<>11iE:Judge Ci nit Judge ‘\\ Ciro i£ Judge in-onnze §?~‘f§J§Tii\I-ini=§ nn ~ - ?i?F,i*%?@*¢<?nn 1eND$Tfl?§$§f£%% '§n1+€)HB$PRESENTEflBYC0UNSK§L ~ i