Below is a summary of the City's answer to the allegations of Bishop McDonnell.
As part of our ongoing coverage of the federal case that John Egan is making out of Bishop McDonnell's reluctance to endorse the historic preservation of Our Lady Of Hope Church (he apparently prefers that it be bulldozed or made it into a concrete planter), we present a summary of the City's opposition to McDonnell's complaint.
The responses of the City of Springfield are taken from court paper # 25, which is archived on the Western Mass Catholics web site. The formal name of the paper is “City Opposition” and it consists of 3 parts, 25.1, 25.2 and 25.3. The partition of the paper was made due to pdf. limitations on the PACER web site of 20 pages per pdf.
My summary gives City responses to the complaint word for word. However, there are many gaps (indicated by ellipses: . . . ) due to length of legal briefs, redundancy of arguments, and concerns for the mental health of transcriber.
Footnotes are not given but are indicated as they occur in the text. Footnotes often include salient points of the case law and not just citations. They can be easily found by referring to the three parts of Paper 25. Footnotes 1-46 are found in 25.1, footnotes 47-101 are found in 25.2, and footnotes 102-131 are found in 25.3.
Paper 25 (City Response)
Before discussing the substance of plaintiff’s [Bishop McDonnell's] assertions we turn first to two procedural issues:
1. Claims against named individuals are redundant and should be dismissed . . . suits against municipal agents in their official capacities are actually suits against the municipality. . . .
2. The City is not a person under the Massachusetts Civil Rights Act (MCRA). Massachusetts courts have indicated that a municipality is not a “person” within the terms of the MCRA and, as such, cannot be sued under the statute. . . . that claim must be dismissed in its entirely and Defendants are entitled to summary judgment on such claims . . .
Plaintiff’s suit challenges the facial validity of the enactment of Springfield’s Our Lady of Hope Historic District Ordinance on constitutional and statutory grounds…...Springfield City Ordinances properties within a historic district are given architectural protection by the Springfield Historical Commission…there is an application process by which the Commission may issue one of three types of certificates to allow changes within historic district: 1. Appropriateness . . . 2. Hardship . . . , and 3. Non-applicability . . .
Instead of filing an application for one of the aforementioned certificates . . . the plaintiff has chosen to challenge the constitutionality of the OLOH Ordinance under the State and Federal constitutions, and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C….(RLUIPA)….
…in 2001, the City of Springfield commissioned a historic survey of the Liberty Heights neighborhood. It was conducted by Bonnie Parson, preservation planner for the Pioneer Valley Planning Commission…Our Lady Of Hope church was included in that survey…
As noted in the survey of Ms. Parsons, the building meets the criteria for eligibility for the National Register of Historic Places, the federal listing of places important to the nation, state, or locality, as the first parish church for Irish immigrants of the Hungry Hill section of Springfield when population spread far enough north of the city to make Sacred Heart too far and too crowded. Established in 1906, the parish has continuously served as the religious, education and social, and civic center for Hungry Hill’s Catholic residents, most of whom have been among successive waves of immigrants to the city…
...the OLOH church is an imposing Italian Renaissance style structure at the corner of Carew Street, a major east/west thoroughfare, and Armory Street, a north/south connector. Not only is the building seen in the immediate neighborhood, but its 145-foot tower can be seen for a distance, such as from the North End bridge as one enters the City from West Springfield...
…OLOH church was designed by Springfield architect John Donohue, who was active throughout central and western Massachusetts designing many Roman Catholic churches, schools, parish houses, rectories and social centers…
Section 1 - Violation Of Free Exercise Of Religion And Establishment Clause, counts 1 (federal) and 2 (state) [click to read full complaint]
A basic principle of constitutional law is that the First Amendment “free exercise clause embraces two separate concepts-freedom to believe and freedom to act. The first is absolute but, …the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.” Laws which regulate conduct rather than speech generally fall outside the First Amendment and into an area over which government enjoys full regulatory power. …..although the application of the OLOH Historic district Ordinance many have some minimal impact upon “the unfettered autonomy” plaintiff “would otherwise enjoy,” plaintiff’s “generalized and diffuse concern for church autonomy, without more, does not exempt” plaintiff “from the operation of secular laws.”…..
…..The Catholic religion does not forbid compliance with the OLOH Historic District Ordinance. Plaintiff will not be subject to substantial pressure to modify his behavior and violate his religious beliefs in order to comply with the OLOH ordinance. The “routine regulatory interaction which involves no inquiries into religious doctrine, no delegation of state power to a religious body, and no detailed monitoring and close administrative contact between secular and religious bodies does not of itself violate the nonentanglement command.” Substantial alteration or complete destruction of abandoned religious exterior architectural features, without compliance with the OLOH Ordinance, is not a constitutionally protected form of religious exercise.
...Plaintiff, as the “party claiming an unconstitutional burden on the free exercise of religion must show (1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the state requirement.”  Plaintiff has not presented facts to bring it within the hybrid rights exception where heightened judicial scrutiny may be appropriate...content-neutral legislation regarding publicly visible expressions such as the exterior architectural features of architecturally significant or historically important sites is permissible because it does not pose any danger of governmental censorship or political orthodoxy.
. . .Plaintiff presents a grab bag full of allegations designed to have the Court, for federal constitutional purposes, review the OLOH Ordinance under strict scrutiny. ......the general proposition for addressing the constitutional protection for free exercise of religion established by the Supreme Court is "that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice."...
...while the government may not coerce an individual to adopt a certain belief or punish him for his religious views, it may restrict certain activities associated with the practice of religion pursuant to its general regulatory powers... The critical distinction is thus between a neutral, generally applicable law that happens to bear on religiously motivated action, and regulation that restricts certain conduct because it is religiously oriented."...
...This critical distinction between beliefs and conduct is recognized in Massachusetts and used in analyzing the state constitutional scope of religious freedom....It is perfectly lawful to "enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city."...
...The OLOH Ordinance was not created to infringe upon or restrict plaintiff's religious practices. Instead the OLOH Ordinance, like its enabling legislation, the Historic District Act, regulates neutral criteria which are applied generally. Therefore, the correct legal standard of review is whether the OLOH Ordinance is rationally related to its stated goals....
...To determine the object of the OLOH Ordinance we must begin with its text because "the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." The OLOH Ordinance does not discriminate against religious beliefs or regulate or prohibit conduct undertaken for religious reasons. The OLOH Ordinance does not refer to any of plaintiff's religious practices...
Section 2 - Violation Of Freedom Of Speech, Expression And Assembly, counts 3 (federal) and 4 (state) [click to read full complaint]
OLOH is not the only Historic District in Springfield which contains a place of worship and Springfield is not the only municipality in the commonwealth with places of worship in local historic districts. [there follows a list and description of 5 local historic districts]
The Massachusetts Cultural Resource Information System (MACRIS) allows a search of the Massachusetts Historical Commission database for information on historic properties and areas in the Commonwealth….it reveals that a number of communities in Western Massachusetts have religious institutions located within the boundaries of their respective Local Historic Districts. [there follows a list of 8 local historic districts with churches]
Mr. McCarroll searched MACRIS for communities beyond Western Massachusetts with local historic districts in which was a resource containing “catholic church” in its description. [there follows a list of 15 Catholic churches located in local historic districts in Massachusetts]
While plaintiff has brought a facial challenge to the OLOH Historic District no such challenge has been brought with regard to any of the other local historic districts in the commonwealth containing property owned by the Roman Catholic Church or any other religious denomination…..
…..Springfield did not prohibit all religious exercise anywhere within its municipal boundaries by the plaintiff. In fact, plaintiff admits to circumstances in which the OLOH Historic District Ordinance allows adequate alternative means of religious expression; “the Parish was merged with St. Mary’s Parish, East Springfield, under a new name, St. Mary Mother of Hope Parish.” Merely designating a building as historical is not an infringement of any constitutional right because the designation itself does nothing to restrict religious practice. Plaintiff’s facial challenge to the OLOH Historic District Ordinance must fail because the challenged Ordinance has plainly legitimate sweep. Moreover, an issue ordinarily is not ripe for decision until a land owner has requested permission to act and has been denied the right to act, or has suffered actual and present harm as a result of the designation.…..
…..Plaintiff’s constitutional claims are based in large part upon the erroneous contention that the OLOH Ordinance purports to control plaintiff’s religious symbols. “[A] Latin cross is not merely a reaffirmation of Christian beliefs.”. Our Lady of Hope was a central meeting point as religious, social and civic center for Hungry Hill residents. In 1945 with the end of World War II it was at the church that a Servicemen’s honor roll was erected to name all the 1000 young parish members who served, placing stars by those from Hungry Hill who had died.” Simply because the exterior architectural features of the OLOH property may have some “religious content” or promote “a message consistent with a religious doctrine” does not make them “run afoul of the Establishment Clause.” In the context of the OLOH Ordinance, the exterior architectural features have a dual significance partaking of both religion and government…..
…..religious symbolism is the use of symbols by a religion. Upon closing the OLOH Church, its former religious symbols were “reduced to profane (non-sacred) use.” The object of the Historic Districts Act and the OLOH Ordinance is to protect the exterior architectural features of historically significant buildings and places. It is not to infringe upon or restrict practices because of their religious motivation. Springfield is not doing anything but regulating in a content neutral manner the exterior architectural features of the OLOH Historic District. The OLOH Ordinance governs actions and while it cannot interfere with plaintiff’s religious believe and opinions, the Ordinance may interfere with plaintiff’s practices. The OLOH Ordinance does not interfere with plaintiff in the performance of any religious rituals or Catholic ceremonies of worship. The OLOH Ordinance does not suppress the Catholic religion or religious conduct. The OLOH Ordinance neither encourages nor discourages participation in religion. To permit plaintiff to excuse illegal alteration of the exterior architectural features of the OLOH Historic District because of his religious beliefs “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”…
Limiting the destruction or substantial alteration of the exterior architectural features of the OLOH property is not even a hypothetical infringement of plaintiff’s purported free speech rights.  Where, as in this case, the communicative content of the regulated activity—its message---is irrelevant to the government’s reason for regulation then it is conduct, not speech, which is being regulated and the First Amendment values are not implicated…
Section 3 - Violation Of Equal Protection Of The Laws By Discrimination, counts 5 (federal) and 6 (state) plus count 7, Violation Of Due Process [click to read full complaint]
Ordinarily a municipality’s reason for creating a new historic district is not reviewable. The record here reveals a reasonable basis for the enactment of the OLOH Historic District. It was created to “protect the architectural integrity of Our Lady of Hope Church, which is scheduled to be closed and is possibly threatened by demolition.” As the Planning Department report pointed out:
Our Lady of Hope Church is slated to be closed by the Diocese of Springfield at the end of 2009. The last church to be closed in Springfield was St. Joseph’s Church located on East Columbus Avenue. Although listed on the National Register of Historic Places, it was sold to a developer and demolished for a strip commercial complex. This proposed local historic district is being proposed to avoid the same possible fate for Our Lady of Hope.…..
…..In 1898, plaintiff transformed itself into a “body politic and corporation sole” and thereby became “subject to all the liabilities and limitations imposed by the Public Statutes.”…Plaintiff does not challenge the OLOH Historic District to use the OLOH site exclusively for religious purposes. Although the plaintiff retains title to the OLOH property, it is no longer used as a place of sacred worship. In fact, plaintiff admits that “the Our Lady of Hope Church was closed”, its assets “were transferred” and “the Church [is] out of service with respect to religious worship.”…..
...In this case the Court should apply a deferential minimum rationality standard of review to the OLOH Ordinance because it is a police power regulation which imposes a general applicable rule of conduct designed to advance society's broad interest in preserving significant exterior architectural features and historic properties...
...the purpose of the Historic District Act and the OLOH Ordinance fit "easily within the established boundaries of 'benevolent neutrality,' in which religious exercise is supported but not promoted" and afford no basis to conclude that the legislative intent was to advance religion...
...the court should look at the specific public interests at stake in creating the OLOH Ordinance. The Historic District Ordinance limits destruction or substantial alteration of the exterior of OLOH property without prior permission of the Springfield Historical Commission. An individual's religious beliefs do not "excuse him from compliance with an otherwise valid law prohibiting conduct than the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition."
The OLOH Historic District Ordinance does not suppress any element of the Catholic worship service. The OLOH Ordinance does not regulate any religious or secular uses of the property by the plaintiff or anyone else. The OLOH Historic District Ordinance does not single out for discriminatory treatment any Catholic religious practice...the Historic District Ordinance merely regulates a secular activity — significant alteration or destruction of the exterior architectural features of a significantly important property in Springfield. The Ordinance does not pressure the plaintiff to abandon its religious beliefs through financial or criminal penalties or impose taxes upon the exercise of plaintiff's religion...
Section 4, complaints under the Religious Land Use And Institutionalized Person Act
4.a. (RLUIPA) discrimination [click to read full complaint]
Plaintiff, conflating two separate provisions in RLUIPA , argues that the “equal terms and nondiscrimination mandates of RLUIPA are also violated by the Ordinance.”  These two separate RLUIPA provisions will be discussed separately herein. RLUIPA’s equal terms provision  provides:
No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
… nothing in the OLOH Historic District Ordinance’s objectives treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose.  Although the OLOH Historic District Ordinance contains only RCB [Roman Catholic Bishop of Springfield] owned property, that fact alone is not enough to prove a violation of RLUIPA’s Equal Terms provision. ….Plaintiff’s failure to identify any property which is similarly situated to the OLOH site and better-treated, in regard to the objectives of the OLOH Ordinance and the purposes of the Historic Districts Act, is fatal to plaintiff’s RLUIPA claims...
…Plaintiff argues that the OLOH Ordinance violates the RLUIPA because it “targeted the Our Lady of Hope Church”, “is but a single-parcel” and “improperly ‘targets’ only church property owned by the RCB.”  As previously discussed plaintiff closed the OLOH church, ceased religious exercises on the OLOH site and relocated the Parish to a different part of Springfield. The creation of the OLOH Historic District followed a statutorily prescribed process aimed at preserving the significant architectural features existing on the OLOH site which seemed to be potentially threatened with destruction by the plaintiff. “The last church to be closed in Springfield was St. Joseph’s Church located on East Columbus Avenue. Although listed on the National Register of Historic Places, it was sold to a developer and demolished for a strip commercial complex. This proposed local historic district is being proposed to avoid the same possible fate for Our Lady of Hope.” ...
…The creation of local historic districts is aimed at preserving exterior architectural features of significant historic properties located within the commonwealth. The preservation of such properties does not have any religious motivation whatsoever …..since there is no evidence in the record from which it may be reasonably inferred that Springfield established the OLOH Historic District in order to discriminate against the Catholic religion, plaintiff’s RLUIPA discrimination claims fails as a matter of law.
Section 4.b. (RLUIPA) substantial burden [click to read full complaint]
Under RLUIPA the government is prohibited from imposing or implementing any land use regulation “in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.  A RLUIPA plaintiff “bears the burden of persuasion” on whether the challenged laws, or Springfield’s “application of those laws” to plaintiff “substantially burdens its exercise of religion.”  Since the OLOH Historic District Ordinance does not impose a “substantial burden” on “religious exercise” plaintiff cannot carry its RLUIPA burden of proof.
Plaintiff’s position is implicitly grounded upon a fundamental misconception of the nature of Historic District legislation. The Historic Districts Act and its legislative derivative, the OLOH Ordinance, do not regulate the religious or any other uses of property. Plaintiff abandoned religious use of the OLOH property; Springfield is not preventing or inhibiting plaintiff from reviving it’s former religious use of the OLOH property. Unlike traditional zoning the Historic District Act and the OLOH Ordinance strive to preserve from unlawful alteration the existing features of property…
…they forbid the substantial alteration or destruction of the exterior architectural features of property without prior approval of the Springfield Historical Commission. Because neither the Historic Districts Act nor the OLOH Historic District limits or restricts plaintiff’s use or development of the OLOH site these local preservations laws do not, as a matter of law, constitute a “land use regulation”  within the meaning of RLUIPA; consequently, plaintiff’s RLUIPA claims against Springfield must be dismissed.
…the plaintiff does not cite any current or planned future use of the OLOH site for religious exercises of any kind. In an attempt to invoke RLUIPA, plaintiff describes the process it generally follows when selling its property to a third part:
…an agreement must be reached between the Bishop and the purchaser that any religious symbols may not be desecrated or put to a sordid use. If such an accommodation cannot be reached, all religious symbols are removed from the interior and exterior building. This would involve the removal of all exterior Christian crosses and stained glass windows depicting religious symbols or scenes. Where it is either impossible or impractical to remove religious symbols from the building exterior (a frieze or carvings of sacred scripture) such symbols are covered with concrete or other suitable material to prevent desecration. In some instances, in order to make certain that religious symbols or expressions are not desecrated, such items must be properly destroyed. 
Nothing in the OLOH Ordinance prevents plaintiff from applying to the Springfield Historical Commission for a certificate to conduct these types of activities. The historical designation of the OLOH exterior architectural features does not transform the sale of the closed OLOH property, which was formerly used as a place of worship, into any form of “religious exercise” under RLUIPA. Plaintiff’s title to the OLOH property, or even its incidental use for religious purposes, would not convert plaintiff’s secular plan for the property, selling it, into a religious exercise protected by RLUIPA. In this regard RLUIPA’s legislative history is enlightening:
The right to assemble for worship is at the very core of the free exercise of religion. Churches and synagogues cannot function without physical space adequate to their needs and consistent with their theological requirements. The right to build, buy or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes. 
The right to sell, lease, or otherwise dispose of space which is no longer needed or used for religious exercises is not at the core of the free exercise of religious; it is not even on its periphery. Disposition of unneeded property is common commercial secular activity without any religious significance. RLIUPA does not protect such secular activities even when they are conducted by religious institutions. Creation of the OLOH Historic District does not give rise to a colorable RLUIPA claim. Springfield has done nothing to substantially burden plaintiff’s religious exercise. …..
…Plaintiff complains that the mere enactment of the Historic District Ordinance creates an inability to make changes to the exterior of the building without seeking a certificate of appropriateness, hardship or non-applicability and asserts that this process constitutes a “substantial burden: under RLUIPA.
Contrary to the plaintiff’s contentions, the Ordinance is not a substantial burden on plaintiff’s exercise of religion. The creation of the OLOH Historic District did not impose a significantly great restriction or onus on any exercise of plaintiff’s religion. It did not force plaintiff to choose between following the precepts of the Catholic religion and ownership of the OLOH Property. It did not force plaintiff to abandon the precepts of the Catholic religion or forfeit title to the OLOH property. Creation of the OLOH Historic District did not put pressure on plaintiff to modify his religious behavior or violate his religious beliefs. The ordinance merely submits the plaintiff to the same restrictions that any other landowner in a local historic district must fact. The plaintiff is not entitled to special government treatment that would violate the Establishment Clause.
Plaintiff speculates that, at some time in the future, it could face “delay, expense and uncertainly” from the mere filing for a certificate with the Springfield Historic Commission.  This minor responsibility is a normal incident of property ownership in a historic district; it is not substantial under RLUIPA……
Plaintiff’s brief cites that the provision of fines from $10 to $500 dollars under section thirteen of the Historic District Act is evidence of a “substantial burden”. However, there is nothing in the Historic Ordinance or state statute that singles out anyone for special burdens on the basis of religious callings. It appears that plaintiff is simply averse to complying with the ordinance’s requirements…
Section 4.c. (RLUIPA) unreasonable limitation [click to read full complaint]
Plaintiff argues that RLUIPA’s exclusions and limits provisions  “are not limited to cases of total exclusion of a religious practice from a jurisdiction. They may exist where a city acts arbitrarily or discriminatorily or where it simply deprives churches of reasonable opportunities to practice their religion.”  That proposition has no application in this case.
First, it is undisputed that the OLOH Historic District Ordinance does not totally exclude the Catholic religion from Springfield. It was the plaintiff, not Springfield, which closed the OLOH church and transferred its assets elsewhere. Second, the exclusions and limits provisions in RLUIPA do not expressly address religious practices. It deals specifically with land use regulations which unreasonably limit “religions assemblies, institutions, or structures within a jurisdiction.  In this case there is absolutely no evidence of any kind that the OLOH Ordinance unreasonably limits any religion or religious assemblies, institution, or structures within Springfield. Indeed the undisputed facts of the case are that after plaintiff closed the “our Lady of Hope Church… the Parish was merged with St. Mary’s Parish, East Springfield, under a new name, St. Mary Mother of Hope Parish.” Thus, the …unreasonable exclusions and limits provisions in RLUIPA do not apply in this case.
For the reasons set forth herein, Springfield submits that it is entitled to summary judgment on all counts, and respectfully requests the courts to declare the OLOH Historic District Ordinance valid under the Federal and State constitution and RLUIPA.
In addition Springfield requests the court to mandate that plaintiff file a timely application with the Springfield Historical Commission before attempting to alter or demolish any of the exterior architectural features of the OLOH site.
Respectfully submitted, Defendants: City of Springfield et al.