In another interesting zoning matter involving a church, this one the Union Avenue United Methodist Church in Memphis, CVS has asked for approval of a site plan that would involve demolition of the church. The Land Use Control Board (basically the Memphis Planning Commission) voted 6-1 against the plan on Thursday, as reported by the Memphis Commercial Appeal. A part of the property is located in a residential zoning district. CVS has applied for approval of its site plan. The planning staff insists on moving the building up towards the street, with parking in the rear. CVS wants some parking at least on the front of the building.
The church was built in the 1920's and is on the National Register of Historic Places. From the available photos on the net, it appears to be a wonderful building (although the public comments from local residents indicate there is a division of opinion about that). Based on what I have read the building is not protected by local historic zoning. Registration on the National Register does not preclude demolition (the National Trust says CVS agreed 11 years ago not to destroy buildings on the National Register, but the federal statute doesn't prevent such demolition). And of course, as we have talked about before, the Tennessee Religious Freedom Restoration Act likely prevents the government from doing much about plans to demolish church buildings, including this one. Naturally, the CVS plans must comply with local regulations.
Often, the property owner would be better to destroy the building before sale, bypassing the historic argument and focusing on the plan. With the building still standing, the controversy expands and makes getting approval that much more difficult.
The recent case in Nashville involving the Charlotte Avenue Church of Christ involved a historic regulation that delayed demolition of the structure. That is to say, local historic zoning protected the building. In the Memphis case, this is not so. With the passage of TnRFRA, that probably is not important any more. It would likely be extremely difficult for the city to find a compelling reason to justify the demolition delay permitted by local zoning regulations.
Both cases illustrate the potential impact of TnRFRA on historic zoning: protecting older churches has become much more difficult. On the other hand, usually these churches are no longer maintained and used because the congregation has gotten older and smaller and can no longer afford to keep the building up. Perhaps a part of TnRFRA can be justified in these cases as not wanting to force small congregations to maintain buildings as eye candy for the rest of us. If the building is that significant, perhaps the city should buy it. But that's the problem: usually the cities would rather regulate than purchase. It's a whole lot cheaper to make the private owner pay the bill.
The Memphis case is a bit like a case here in Nashville several years ago. Walgreens wanted to build a new store and the corner of 30th and West End. The old Jacksonian Apartments were to be torn down to make way for the Walgreens. A variance was needed for the plan submitted but the real issue was the historic nature of the Jacksonian, although it was not covered by local historic zoning. In the end, the variance was granted, the case was appealed (Tom White and I represented Walgreens who won), and the Walgreens was built, and is now doing business. A new Jacksonian was built down the street incorporating elements of the old.
The Memphis case must still be decided by the Memphis City Council; it will be interesting to see how the vote goes.