City of Springfield Opposition to Bishop McDonnell's Lawsuit


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.
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Paper 25 (City Response) 

Background 


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.[8] . . .

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.[9] . . . 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.”[10] 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.”[12]…..

…..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.”[45] 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.” [84] 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.[47] ......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."[49]...

...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."[51]...

...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."[53]...

...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."[57] 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.”[17] 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.[18]…..

…..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.”[29]. 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.”[30] 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.”[31] 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.”[39] 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.”[40]…

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. [86] 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.[22] 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.”[23] 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.[24]…..

…..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.”[33]…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”[37], its assets “were transferred” and “the Church [is] out of service with respect to religious worship.”[38]…..

...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"[71] 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."[83]

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 [116], argues that the “equal terms and nondiscrimination mandates of RLUIPA are also violated by the Ordinance.” [117] These two separate RLUIPA provisions will be discussed separately herein. RLUIPA’s equal terms provision [118] 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. [122] 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.” [125] 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.” [126]...

…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. [90] 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.” [91] 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” [94] 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. [101]

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. [102]

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. [107] This minor responsibility is a normal incident of property ownership in a historic district; it is not substantial under RLUIPA…[108]…

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 [128] “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.” [129] 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. [130] 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.”[131] Thus, the …unreasonable exclusions and limits provisions in RLUIPA do not apply in this case.

Conclusion

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.

City of Springfield's Response to the Bishop's Facts


It's occurred to me lately that the Our Lady of Hope lawsuit about historic preservation has dragged on for just about as long as the famous 3-year duration of the 8.5 Million Dollar Insurance Trial, June, 2005 to June, 2008. How could anyone forget that marathon, in which over a hundred victims of sexual abuse at the hands of Diocesan personnel over 60 years settled for millions of dollars after a convoluted courthouse journey encompassing dozens of lawyers and thousands of pages of disputed documents? The combined lawyer's bills alone must have been in the millions, though there was never an accounting of that particular item.

The stakes in this case are completely different. Here, there is only a solitary church, which has been deemed "historic" by the municipality of Springfield, and which has been deemed "non-historic" just as strongly by Bishop McDonnell, who has expressed a wish to encase it in concrete, if not tear it down completely. 

The thing that unites the two lawsuits is that both were initiated by McDonnell and carried out with fidelity by John Egan, the longtime counsel for the diocese: both use every trick in the book: obfuscation, delaying tactics, endless appeals and arguing on technicalities are only a few. This conduct was particularly egregious in the case of the abuse victims, since their claims were essentially held hostage during the 3-year litigation. The Bishop's rejection of historic preservation, while still a widely-held social value, is less bad, I suppose, than the rejection of the dignity and rights of the victims of sexual abuse. Still, the tactics are aimed at the same effect, which is a general fatigue on the part of City lawyers and a greater inclination to move toward settlement as opposed to fighting it out.  

With that in mind, below is a presentation of the main answers that the City's lawyers made to the purported 'facts' of the bishop's case. This happened fairly early in the proceedings as part of the groundwork for building the respective arguments. Each side sought summary declaration (that is, each side claimed that there were no substantial differences to decide, and that they should prevail by applying existing law to a recitation of the facts alone; thus the importance of the facts). This document has been shortened.

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Case 3:10-cv-30033-MAP Document 27 Filed 08/13/10 Page 1 of 11
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ROMAN CATHOLIC BISHOP OF SPRINGFIELD, Plaintiff
v. CITY OF SPRINGFIELD, ET AL, Defendants

DEFENDANTS’ RESPONSE TO PLAINTIFF’S STATEMENT OF MATERIAL FACTS AND DEFENDANTS’ SUPPLEMENTARY STATEMENT OF MATERIAL FACTS
Undisputed Material Facts

Springfield does not dispute most of the material facts set forth in paragraphs 1–31, 32 (which does not make any statement of material fact), 33–46, 49, 50, 52–63, 66, 70, and 71.

However, Springfield does dispute those portions of the said paragraphs, and all other paragraphs in Plaintiff’s Statement, in which plaintiff mischaracterizes the exterior architectural features on the OLOH site as “religious” expressions, details, features, ornamentation, or symbols. Springfield states that the plaintiff, by closing the OLOH church and placing it “out of service with respect to religious worship,” abandoned the “religious” nature of said exterior architectural features on the OLOH site, and thereby changed the status of the exterior architectural features on the OLOH site from religious to non-religious – from sacred to temporal goods.
Disputed Material Facts
2. Springfield disputes Plaintiff’s Statement, in paragraph 48: “On December 14, 2009, the RCB, through its counsel, appeared at a meeting of the Springfield Historical Commission and voiced objections based upon inadequate notice, that the designation imposed a constitutionally impermissible burden and that the creation of this Historic District would infringe upon the RCB’s constitutionally protected rights of religious freedom and freedom of speech, its statutory rights under RLUIPA and that the designation was unlawful spot regulation and a violation of other law. Further, the RCB asserted that the designation was an unlawful intrusion into its Pastoral Planning process as evidenced by the fact that the proponents of the Ordinance were parish members who had expressed their unhappiness with the closing of the parish and members of another parish, Immaculate Conception in Indian Orchard, slated to be closed and who had taken steps to have the Immaculate Conception Church, rectory, school and convent similarly designated by the Historical Commission and defendants. The RCB asked the Historical Commission to reject the proposal to create this single-parcel Historic District, and at a minimum, to seek a legal opinion to assess the constitutional effect of such a designation and regulation on the RCB, and to address all other legal ramifications of the proposed district. The Commission refused to seek such an opinion before reporting to the Springfield City Council its recommendation to create this historic district. Affidavit of John J. Egan, ¶ ¶ 5, 6 and 10 (App. Ex. 5); Complaint, ¶ 24 (App. Ex. 1).”

Springfield asserts that the Our Lady of Hope Historic District (the “Ordinance”) is not a “constitutionally impermissible burden” and does not “infringe upon the RCB’s constitutionally protected rights of religious freedom and freedom of speech, [or] its statutory rights under RLUIPA.” Furthermore, the Ordinance is not an “unlawful spot regulation [or] a violation of other law,” since the Historic Districts Act, G.L. c. 40C, Section 3, allows for the creation of single-parcel historic districts.
5. Springfield disputes Plaintiff’s Statement, in paragraph 64: “The Our Lady of Hope Historic District, and the later enacted Immaculate Conception Historic District, are the only historic districts in the City of Springfield encompassing property of the RCB. Affidavit of John J. Egan, ¶ 21 (App. Ex. 5).”

As noted in the Affidavit of Robert McCarroll: Springfield’s Local Historic Districts (“LHD”) include a number of religious institutions within their boundaries. Springfield created the Quadrangle-Mattoon Street LHD, its first district under MGL Chapter 40C, in 1972. Within its boundaries and subject to its exterior controls are Christ Church Episcopal Cathedral and Hispanic Baptist Church (Grace Baptist Church at the time of enactment). (Exhibit A McCarroll Aff. ¶ 10).

Springfield created the Forest Park Heights LHD in 1975. Within its boundaries and subject to its exterior controls are Faith United Church, Kodimoh Synagogue, and First Park Memorial Baptist Church. Additionally, at the time of the establishment of the LHD, there was an estate owned by the Congregation of Saint Vincent DePaul, a Roman Catholic order commonly known as the Vincentian Fathers; the property was sold in 1984 to a private person. (Exhibit A McCarroll Aff. ¶ 11).

Springfield created the McKnight LHD in 1976. Within its boundaries and subject to its exterior controls are Saint Peter’s Episcopal Church, Holy Temple Church, Christian Hill Baptist Church, Faith Baptist Church, and Huong Sun Meditation Temple, a Buddhist group. (Exhibit A McCarroll Aff. ¶ 12).

Springfield created the Lower Maple LHD in 1977. Within its boundaries and subject to its exterior controls is South Congregational Church. (Exhibit A McCarroll Aff. ¶ 13). The City of Springfield created the Maple Hill LHD in 1977. Within its boundaries and subject to its exterior controls is The Church of Jesus Christ of Latter Day Saints, also known as the Mormons. Additionally, at the time of the establishment of the LHD, there was Ursuline Academy, a school operated by the Ursuline Sisters, a Roman Catholic order. The property was sold in 1984 to the Glorious Gospel Church but is now owned by the Holyoke-Chicopee-Springfield Head Start. (Exhibit McCarroll Aff. ¶ 14).

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. MACRIS reveals that a number of communities in Western Massachusetts have religious institutions located within the boundaries of their respective Local Historic Districts. (Exhibit A McCarroll Aff. ¶ 15).

In 1972, Longmeadow created a LHD, which contains the First Church of Christ, Congregational. (Exhibit A McCarroll Aff. ¶ 16). In 1972, West Springfield created a LHD, which contains the First Congregational Church. (Exhibit A McCarroll Aff. ¶ 17). In 1975, Lenox created a LHD, which contains Saint Anne’s Roman Catholic Church, Church on the Hill, and Trinity Episcopal Church. (Exhibit A McCarroll Aff. ¶ 18). In 1979, Granby created a LHD, which contains the Immaculate Heart of Mary Roman Catholic Church and the Church of Christ. (Exhibit A McCarroll Aff. ¶ 19). In 1990, Belchertown created a LHD, which contains the Saint Francis Roman Catholic Church, Hope United Methodist Church, and the Congregational Church. (Exhibit A McCarroll Aff. ¶ 20). In 1991, Chicopee created a LHD, which contains the Assumption of Mary Roman Catholic Church, Holy Name of Jesus Roman Catholic Church, Christ’s Community United Church of Christ, and Grace Episcopal Church. (Exhibit A McCarroll Aff. ¶ 21). In 1994, Northampton created a LHD, which contains the Saint Mary of the Assumption Roman Catholic Church, Blessed Sacrament Roman Catholic Church, and Saint John’s Episcopal Church. (Exhibit A McCarroll Aff. ¶ 22). In 1995, Great Barrington created a LHD, which contains the First Congregational Church. (Exhibit A McCarroll Aff. ¶ 23).

Searching MACRIS for communities beyond Western Massachusetts with local historic districts in which was a resource containing “catholic church” in its description and then searching the Internet for church web sites or web presence, McCarroll listed the results of that research exercise produced the list below from his Affidavit:

Our Lady of Hope Catholic Church in Barnstable
Saint Andrew’s Catholic Church in Billerica
Cathedral of the Sacred Heart in Boston
Our Lady of the Cape Catholic Church in Brewster
Our Lady Help of Christians Catholic Church in Concord (closed 2004)
Saint Elizabeth’s Catholic Church in Edgartown
Sacred Heart Catholic Church in Groton (closed 2009)
Sacred Heart Catholic Church in Lexington
Saint Joseph’s Catholic Church Lowell (now a Shrine)
Mary Immaculate of Lourdes Catholic Church in Natick
Our Lady Star of the Sea Catholic Church, Oak Bluffs
Saint Peter’s Catholic Church in Plymouth
Saint James’ Catholic Church in Salem
Saint John’s Catholic Church in Townsend
Saint Mary’s Catholic Church in Uxbridge (Exhibit A McCarroll Aff. ¶ 24).

6. Springfield disputes Plaintiff’s Statement, in paragraph 65: “Since 1972 when the first historic district was designated in Springfield, the practice of the City of Springfield has been to exclude church property from such districts. Affidavit of John J. Egan, ¶ 22 (App. Ex. 5).”

Springfield does not specifically exclude or include churches, or any other religious property, in its local historic districts. Properties that are designated as a historical district are selected based on “the historic and architectural value and significance of the site, building or structure, the general design, arrangement, texture, material and color of the features involved, and the relation of such features to similar features of buildings and structures in the surrounding area.”
7. Springfield disputes Plaintiff’s Statement, in paragraph 67: “Placing these exterior religious symbols under government control through the creation of the Our Lady of Hope Historical District essentially freezes in place these religious symbols, stain glass windows, exterior crucifixes, and carved Latin scriptural phrases so that it is not possible for the Bishop to exercise his responsibilities under Church doctrine, scripture and Canon Law to safeguard and respect the ecclesiastical goods and other patrimony of the Roman Catholic Church which may necessitate either removal or relocation (as part of a sale to a third party), or other changes to prevent their desecration or other sordid use. Msgr. Bonzagni Affidavit, ¶ 24. (App. Ex. 3).”
Springfield asserts that the Ordinance does not “freeze in place” any exterior religious symbol, and the Bishop retains the ability to exercise his responsibilities to “safeguard and respect” these religious goods.
8. Springfield disputes Plaintiff’s Statement, in paragraph 68: “Placing control of the religious symbols now located on the exterior of Our Lady of Hope Church with the government of the City of Springfield directly interferes with the Bishop’s exercise and discharge of his doctrinal, scriptural and Canon Law obligations to safeguard and respect the ecclesiastical goods and other patrimony of the Roman Catholic Church. Msgr. Bonzagni Affidavit, ¶ 26.”

Although the Ordinance may inconvenience the Bishop, it does not amount to such a direct and substantial obstacle to the Bishop’s “exercise and discharge of his doctrinal, scriptural and Canon Law obligations” that would require RCB-owned property to be treated differently from non-religious property located within a historic district.

9. Springfield disputes Plaintiff’s Statement, in paragraph 69: “The Ordinance designating Our Lady of Hope Church as an historic district imposes significant restrictions on the RCB’s use of its religious symbols and property. More specifically, the historic designation prohibits the RCB from any construction or alteration “in any way that affects the exterior architectural features unless the [historic] commission shall first have issued a certificate of appropriateness, a certificate of non occupancy or a certificate of hard-ship with respect to such construction or alteration,” which certificates may only be obtained by requiring the RCB to file applications seeking such certificates “in such form as the [historic] commission may reasonably determine, together with such plans, elevations, specifications, material and other information, including in the case of demolition or removal a statement of the proposed condition and appearance of the property, thereafter, as may be reasonably deemed necessary by the [historic] commission to enable it to make a determination on the application.” (App. Ex. 8), G.L. c. 40C § 6.”
The Ordinance does not significantly restrict the RCB’s use of its religious symbols and property; it merely requires the RCB to follow the statutory process applied to every property subject to the Historic Districts Act. Plaintiff’s reference to “certificates of non-occupancy” is incorrect and should refer to certificates of “non-applicability,” pursuant to G.L. c. 40C.

Respectfully submitted,
DEFENDANTS: CITY OF SPRINGFIELD ET AL

Friday, August 13, 2010

City of Springfield Law Department 36 Court Street Springfield, MA 01103 Tel. No. (413) 787-6085 Fax No. (413) 787-6173s  

Appeal Argued May 8th

This never-ending lawsuit was heard from again on May 8th when the appeal was argued in Boston in front of Sandra Lynch, Chief Appellate Judge, and Bruce Seyle and Jeffrey Howard, Appellate Judges. The case was argued for the bishop by John Egan and for Springfield by Anthony Wilson.

At the moment, PACER (a national index for U. S. District, bankruptcy, and appellate courts), says only "CASE argued". It could be a long time before a decision, but maybe not.

In the interim I thought it would be worthwhile to look through the reams of legal papers generated so far. The first one was of course the original complaint, dating from Feb. of 2010. In it, the bishop charged the City of Springfield with a long and grievous list of offenses against him, Timothy, bishop of Springfield.

Offenses against freedom of religion and freedom of speech lead the list, but there was plenty more including an astonishing one about how the city had violated the bishop's civil rights. I do believe that one was thrown out because the city is not a person and therefore cannot be charged with discrimination, but maybe not. What shines through in the language of the appeal is that Egan and Co. are going back to the original complaint with a vengeance. There is no indication whatsoever that they have ceded any ground, despite getting literally decimated by Judge Michael Ponsor on Jan. 2, 2011, when he found for the city on all ripe counts.

The case is ostensibly about whether Springfield has the right to declare a church a historic site and therefore worthy of preservation, but from the volume and vehemence of the church lawyers' briefs that simple fact is easy to lose sight of. For sure, this is one of the takeaways: the church does not like the state telling it what to do.

What also comes through time after time in the initial complaint is the amount of hatred that the bishop has for historic preservation. He simply does not believe that it has any value. Another item of note is how willing the bishop is, in several papers, to charge the city with bad faith; and yet, in its response, and throughout the case, the city never reciprocates and accuses the bishop of unfair dealing. Talk about turning the other cheek! The City deserves a gold star for that one.

The City Answer is the second document in the series and lists about 35 Affirmative Defenses. Some of these are quite interesting. I list some of them below and will likely comment on some of them next time around.

Till next time, intrepid court watchers! Keep the faith! Remember, this case is only in its 3rd year, 3rd month! We'll get there!

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THIRD DEFENSE: The City of Springfield reserves the right to recover costs and attorney fees in the event that the above action [the bishop's complaint] is found frivolous or in bad faith.

FIFTH DEFENSE: The complaint fails to state a claim upon which relief can be granted against the
defendants because the Our Lady of Hope Local Historic District ordinance does not
prevent the RCB from carrying out its religious and charitable mission in its current
buildings.

SEVENTH DEFENSE
The complaint fails to state a claim upon which relief can be granted against the
defendants because the Our Lady of Hope Local Historic District Ordinance and the
Historic Districts Act, G.L, ch. 40C, §§ 1 et seq., are content-neutral laws of general
applicability which regulate conduct, rather than speech, and they are therefore outside
the First Amendment.

EIGHTH DEFENSE
Even assuming that there is communicative content in the exterior architectural features
of the Our Lady of Hope Historic District that content was irrelevant to Springfield’s
reasons for creating the said Historic District.

NINTH DEFENSE
Even assuming that there is activity protected by the First Amendment at issue here, it is
not appropriate to evaluate the constitutionality of Our Lady of Hope Local Historic
District Ordinance solely on its face, or exclusively on the basis of its potential effect in
hypothetical cases.

SIXTEENTH DEFENSE
The defendants acted in good faith reliance on legislative or statutory authority.

SEVENTEENTH DEFENSE
The complaint fails to state a claim upon which relief can be granted because the
constitutional rights to religious freedom, freedom of speech and expression, freedom of
assembly, due process and equal protection of the laws are individual rights which do not
protect artificial, state created, entities such as a body politic and corporation sole.

EIGHTEENTH DEFENSE
The complaint fails to state a claim upon which relief can be granted because the RCB is
subject to all the liabilities and limitations imposed by the Public Statutes of the
Commonwealth including the Historic Districts Act and the Our Lady of Hope Historic
District; the RCB’s power to receive, take and hold real estate and to manage and dispose
of it for the religious and charitable purposes of the Roman Catholic church is subject to
the laws of the Commonwealth including the Historic Districts Act and the Our Lady of
Hope Historic District.

TWENTIETH DEFENSE
Based on information and belief, the defendants’ actions were objectively reasonable in
light of the facts and circumstances and existing law without regard to underlying intent
or motivation.


TWENTY FIRST DEFENSE
The complaint fails to state a claim upon which relief can be granted because the Our
Lady of Hope Church was created using the accumulated funds from numerous
individual contributions extending through a long period of time. The RCB apparently
has discontinued all religious uses of the Our Lady of Hope Church and it is not possible
to return those numerous contributions to the original donors. Under the doctrine of cy
pres it becomes the court’s responsibility to enforce the lawful objects of the
contributions most nearly corresponding to those for which the funds were originally
destined. The Historic Districts Act and the Our Lady of Hope Historic District
Ordinance operate to achieve that end by preserving the exterior architectural features of
the Our Lady of Hope property in the manner intended by the original donors of the funds
used to create it.


TWENTY FOURTH DEFENSE
The complaint fails to state a claim upon which relief can be granted because the Our
Lady of Hope Historic District Ordinance does not prevent members of the Roman
Catholic Church from pursuing their religious beliefs, coerce them into abandoning or
violating those beliefs, or dissuade members of the Roman Catholic Church from
practicing their faith.

TWENTY FIFTH DEFENSE
The complaint fails to state a claim upon which relief can be granted because there is no
indication that the RCB is precluded from fulfilling his religious mission through worship
as a whole, or through his various other activities, in other locations throughout the city.

TWENTY EIGHTH DEFENSE
The complaint fails to state a claim upon which relief can be granted because the Our
Lady of Hope Historic District Ordinance does not totally exclude religious assemblies
within the meaning of the RLUIPA from Springfield.

TWENTY NINTH DEFENSE
The complaint fails to state a claim upon which relief can be granted because the Our
Lady of Hope Historic District Ordinance does not unreasonably limit religious
assemblies, institutions, or structures within the meaning of the RLUIPA.

THIRTIETH DEFENSE
The complaint fails to state a claim upon which relief can be granted because the Our
Lady of Hope Historic District Ordinance does not impose or implement a land use
regulation.

THIRTY FIRST DEFENSE
The complaint fails to state a claim upon which relief can be granted because, even
assuming the Our Lady of Hope Historic District Ordinance imposes or implements a
land use regulation, it does not do so in a manner that imposes a substantial burden on the
religious exercise of the RCB within the meaning of the RLUIPA.

THIRTY SECOND DEFENSE
The complaint fails to state a claim upon which relief can be granted because, even
assuming the Our Lady of Hope Historic District Ordinance imposes or implements a
land use regulation in a manner that imposes a substantial burden on the religious
exercise of the RCB within the meaning of the RLUIPA, the Our Lady of Hope Historic
District Ordinance furthers a compelling governmental interest by promoting the
educational, cultural, economic and general welfare of the public through the
preservation and protection of the distinctive characteristics of buildings and places
significant in the history of Springfield or their architecture, and through the maintenance
and improvement of settings for such buildings and places and the encouragement of
design compatible therewith and the Our Lady of Hope Historic District Ordinance is the
least restrictive means of furthering that compelling governmental interest.

THIRTY FOURTH DEFENSE
The Our Lady of Hope Historic District Ordinance is presumed to be constitutional and
every rational presumption in favor of its validity is to be made. The plaintiff bears a
heavy burden of demonstrating, beyond a reasonable doubt, that there are no conceivable
grounds supporting the legislative enactment.