The Mosque at Ground Zero: Religious Freedom, saved by the usual lawlessness of land-use regulation

In a display of respect for the rule of law and general decency utterly atypical of land-use law, the Landmarks Preservation Commission voted unanimously not to landmark the old Burlington Coat Factory building at 45 Park Place and thereby refrained from blocking the effort of the owner, Sharif El-Gamal, to demolish the building and erect a mosque in its place. Opponents of the mosque are not Muncipal Art Society types bent on saving a beloved structure from demolition: They are simply an anti-Islamic mob, bent on preventing a mosque and islamic community center from being erected close to the site of the destruction of the World Trade Center. NYC's landmarks law simply seemed like a handy tool by which to block the mosque.

As, indeed, it is: The City's landmark law, like most land-use regulation, is a stew of vague adjectives inviting lawless exercises of administrative discretion. The City's administrative code, for instance, defines as a "landmark" “any improvement, any part of which is thirty years old or older, which has special character or special historic or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation. . . . ” N.Y.C. Admin. Code § 25-302(n) . Having met the thirty-year requirement (it was built in 1858), the Burlington Coat Factory Building could easily have met the "special character or special historic or aesthetic interest" factor, had the Commission wanted to designate it as a landmark. As the New York Observer notes, the structure was "a throwback to an earlier era of European grandeur, the Italian palazzo intended to conjure up visions of economic might." The City has landmarked many less distinguished buildings: Why not this one?

The reason, presumably, is that Mayor Bloomberg (to his credit) did not want the City's landmark law to be reduced to the tool of an anti-Muslim mob. But here are two sobering thoughts. First, religious free exercise seems to have been preserved in this case simply by pure administrative discretion rather than reasonably specific legal standards. Second, some apparently intelligent commentators like B'nai B'rith have such little respect for the rule of law that they believe that the City can block the mosque on the theory that the mosque would be offensive to the memory of persons murdered in the 9/11 attack.

Leave aside the issues of religious free exercise, and focus for a moment on basic rule of law: 45 Park Place is located in a C6-4 zoning classification ("General Central Commercial") where houses of worship are allowed "as of right." Assuming that this particular proposed house of worship meets the setback, height, and bulk requirements of the Lower Manhattan special zoning district, the city's denial of a zoning compliance permit would be flagrantly ultra vires: Building inspectors, after all, cannot simply fabricate a new "honor-the-9/11-dead" zoning district on the spot. That B'nai B'rith and others think otherwise says volumes about how we have been conditioned to jettison rule of law by the sheer vagueness of landuse regulations.