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For week ended March 26, 2000 Posted 24 Feb 2001
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Sent on Mormon-News: 30Mar00

Summarized by Kent Larsen

Mormons appeal steeple ruling
Belmont MA Citizen-Herald 23Mar00 N1
By Linda Pinkow: Staff Writer

BELMONT, MASSACHUSETTS -- Lawyers for the LDS Church filed an appeal on Monday of a judge's ruling that limits the height of the steeple on the Boston Massachusetts Temple to just 14 feet above the height of the building. The appeal, filed with Middlesex Superior Court, seeks to reinstate a Belmont Zoning Board of Appeals' decision to allow a 139-foot steeple (from the ground -- the building is 58 feet high) on the building.

"Primarily we want to stand up for our right to have a steeple on our church," said lawyer Ken Harvey, an LDS Church member, of Holland & Knight, L.L.P., the Boston law firm representing the church. "We were very surprised at Judge Fahey's decision," Harvey said. "Looking around the landscape of New England, one can't help but notice the important role that steeples play. ... We believe that the temple will only be half complete without the steeple."

Judge Fahey decided on February 22nd that the steeple wasn't covered under Massachusetts' Dover amendment, and annulled the Belmont Zoning Board of Appeals' decision, based on the Dover amendment, to allow the steeple. The temple is currently under construction on Belmont Hill outside of Boston.

The appeal disagrees with Fahey's finding that the steeple is not necessary to the religious purpose of the temple. "We would certainly argue that a prayer offered by a farmer in his field has the same efficacy as a prayer offered in St. Paul's Cathedral, [but] it's simply incorrect to conclude that St. Paul's Cathedral is not essential," explained Belmont Ward Bishop Grant Bennett. "The building and the steeple together represent and symbolize important religious truths to us."

Bennett also chafe's at Fahey's judging what is important to Mormonism, "It's interesting that someone not of our faith would be so presumptuous to conclude what is essential and what is not essential to our faith."

The appeal covers Fahey's decision in a May 1997 lawsuit by six Belmont residents against the Church and the town of Belmont, claiming that the Zoning Board of Appeals was incorrect in granting a zoning exception to build such a tall steeple. Zoning law in effect for the area limits building height, including steeple, to 72 feet. The Board granted an exception based on the Dover Amendment, which exempts Churches from zoning restrictions which might be used by a government to discriminate on the basis of religion. The Dover amendment allows zoning regulations that do not affect the religious purpose of the building.

Bennett also attacked Judge Fahey's decision as siding with a few residents compared with many that allowed the Church's steeple, "This was a decision that was very carefully reviewed and scrutinized by the elected officials, by the ZBA, whose job it is to make a determination as to what is reasonable and unreasonable. That decision was made after many, many months of hearings. The judge in this case negated what was essentially the views of the community, but for a small handful," said Bennett. "The ZBA has been taken out of the equation."

But Art Kreiger, a Belmont resident and lawyer representing the plaintiffs is not surprised that the Church has appealed. "This is an issue that everybody thought might ultimately require resolution by the [state Supreme Judicial Court]," said Kreiger. "We'll take [the appeal] up as high as they like."

The appeal filed will put the case before the State Appeals Court, but both sides think the Supreme Judicial Court may step in and take the case, instead of allowing the Appeals Court to hear it first. "The SJC always has the ability to take a case on its own, in what's called Direct Appellate Review, or any of the three parties can request that the SJC take it up," said Kreiger. "You have to have a good reason to do so," he said, adding that the case might be of interest to the SJC. "Some of the previous cases under the Dover Amendment were decided by the SJC," he said.

And the Church's attorneys may try to push the appeal to the SJC now, in any case, "The attorneys for the church are looking at" petitioning the SJC to take the case, Harvey said. "We're certainly going to look at all our options. That may be a possibility."

The Church is now considering what to do while it waits for the appeal to be heard. The Temple's dedication is tentatively scheduled for late summer or early fall, and it is not yet clear how long the appeals process will take. Harvey thinks it will be late May or early June before the preliminary processes are complete. In order to get the building open and in use, the Church may put a smaller, complying steeple in place, or even leave the building without a steeple until the appeal is complete.

Meanwhile, lawyers are expecting a decision from the U.S. First Circuit Court of Appeals on the second lawsuit involving the building. That lawsuit challenges the constitutionality of the Dover Amendment. While the decision could be issued at any time, both sides say they will appeal to a higher court should the decision go against them. The constitutionality of the Dover Amendment could potentially reach the U.S. Supreme Court.


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