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.