Churches often own property and when that property is no longer mission critical the churches lease the property to a tenant. It provides the church a source of income from an asset that may one day again be needed. It allows the church to retain control of what is typically adjacent or nearby property. Of course, the Ecclesiastical Abstention Doctrine may apply to some disputes, in whole or in part, about church property. In Neutral Principles jurisdictions, secular issues may be decided and religious issues ignored or the reserved for decision by the church.
Beluah Pilgrim Holiness Church v Otto, Slip Op., Memorandum and Order (Mass. App. 2018) was an interlocutory appellate order concluding that the Housing Court had jurisdiction to hear eviction proceedings against tenants of church property. The Housing Court in Massachusetts, apparently from the opinion, conducts “summary proceedings,” which are probably cases tried only on written submissions and a due process hearing. Most likely, if either party desires trial of issues not suitable for that minimal process, the matter is transferred to a court of general jurisdiction.
The takeaway is that in Neutral Principles jurisdictions church landlords, and tenants, should be able to use limited jurisdiction courts and proceedings. The flip side is that they can be forced to participate in proceedings before those limited jurisdiction tribunals and should not assume the church will be able to easily ascend to a court of general jurisdiction.
We have reported on this type of tar baby before. In these situations, a public funding program to accomplish a governmental purpose attracts a variety of public and private participants. We reported in 2017 on a United State Supreme Court opinion regarding Trinity Lutheran Church v Comer, 137 S. Ct. 2012 (2017) regarding a program that paid for rubber surfacing on concrete play “ground” surfaces and a subsequent decision in Taylor v Town of Cabot, 2017 VT 92 in which a town granted money for restoration of a historic church building. In the Vermont Taylor opinion, the case was remanded to the trial court and a risk the church ran in the case was that the church might have to refund the grant money. In Comer, the church prevailed so that the playground upgrade need not be repaid by the church.
In Caplan v Town of Acton, Slip Op. (Mass. 2018), taxpayer protesters sued town because a church received two grants. The appellate court split the difference, to a point. One grant was for payment of an architect to draw up a “Master Plan” for restoration of the church building and two outlier buildings. The main church sanctuary building was built in 1846. The Town of Acton was founded in 1735 and the church formed part of the town square. The other grant was to repair stain glass windows first installed in 1898. In order to obtain the money, the church had to convey a “historic preservation restriction” on the buildings, the money could only be obtained in reimbursement on invoices for work consistent with the preservation proposed in the church’s applications for the grants. The court remanded the “Master Plan” grant for further consideration and barred the grant for the stain glass windows. The total value of both grants was less than $110,000, a little over $50,000 each.
The opinion is valuable for its historic review of the reason Massachusetts amended its Constitution in the Nineteenth Century by adding an “anti-aid amendment.” The court reported that in the Nineteenth Century the pressure to provide public resources to churches caused “fear” the public coffers would be drained by competing churches and denominations.
But, historic preservation is almost too expensive for private resources to unilaterally achieve because private capital usually must chase profit. Profit is obtained not through preservation but through maximizing return on capital. Thus, the government purpose of preservation might be thwarted because part of the history to be preserved, which was built before several states in the union became states and is very expensive to keep, included a church. There might be a hidden lesson in this opinion, too. The “historic preservation restriction” might be more costly in the long run than the church presently anticipates because taking the government’s money is always risky.