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ACLU studying land sale

Restrictions on church-site sale

A service earlier this month at St. James the Great Church, which has a purchase and sale agreement. A service earlier this month at St. James the Great Church, which has a purchase and sale agreement. (Photos by Essdras M Suarez)
By Evan Allen
Globe Correspondent / April 29, 2012
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The American Civil Liberties Union of Massachusetts is examining whether land use restrictions on a Catholic Church property slated for purchase by the town of Wellesley could violate the constitutional separation of church and state, an ACLU lawyer said last week.

The Wellesley Board of Selectmen signed a purchase and sale agreement this month with the Archdiocese of Boston to buy St. James the Great Church for $3.8 million. If the sale is approved at Town Meeting, selectmen plan to turn the 8-acre site on Route 9 into a recreational center.

The purchase and sale agreement would bar the town from using the land as an embryonic stem cell research facility; as a facility where abortions, assisted suicide, or euthanasia would occur; or as a professional counseling facility where abortion, assisted suicide, or euthanasia are advocated. The restrictions last for 90 years.

“This is the government accepting a restriction on what the public can do with this property and on what the government can do with it based on canon law,” said Sarah Wunsch, staff attorney for the ACLU. “That is allowing a religious entity to control what the public can do with public property.”

Several Wellesley residents have contacted the ACLU about the restrictions, she said.

“It raises serious concerns for us and we will be looking at it more carefully and may weigh in,” she said.

The First Amendment of the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

At a Board of Selectmen meeting Monday night, town counsel Albert Robinson defended the decision to accept the deed restrictions. “Is the restriction on use somehow supporting religion?” Robinson said. “In my opinion, no.”

The agreement also restricts the town from turning the site into a house of religious worship, or into a school other than a public elementary, middle, or high school.

In a letter to selectmen published on the town’s website, Robinson wrote that state law allows religious institutions to make such restrictions on land they own. “There is no constitutional issue presented, in my opinion, on the acquisition of the property on those use restrictions,” Robinson said in an interview.

Robinson distinguished between civil and canon law, saying that the town had absolutely no involvement in any litigation with the Vatican.

The St. James parish was closed in 2004 but parishioners have refused to leave, and have unsuccessfully appealed to the Vatican to reverse the closing and deconsecration of their parish.

The parishioners group still has one more appeal left with the Vatican but has not decided whether to pursue it. The sale of St. James to the town is contingent upon the resolution of the Vatican appeals.

A spokesman for the archdiocese said that the deed restrictions contained in the agreement are simply a matter of archdiocesan policy, and that there is nothing unusual about this sale.

Robinson said that he has been combing through deeds in other counties to see whether the restrictions on the Wellesley property are standard in transactions with the archdiocese.

“No deed out from the archdiocese has not included identical use restrictions,” he said. “This is relevant to whether we were somehow unfairly targeted. So far it does not appear that we have been unfairly targeted.”

Robinson said the deed restrictions have almost no practical consequences for the town, which plans to use the site for a playing field, swimming pool, and skating rink.

“We can either grab the property subject to the restrictions, or we can say no and hang our hats on principle,” he said. “We have elected not to hang our hats on principle because the application of the principle is so remote.”

However, Wunsch called it “shortsighted” to say that the town would not be affected by the deed restrictions.

“Ninety years is a long time to limit what the government can do,” she said. “There’s a lot of questions that still aren’t answered that people need to think hard about.”

Robinson said that while it was impossible to predict the future, it was reasonable for the town to conclude that it would not want to build a facility for abortions, euthanasia, or stem cell research on the St. James site.

Wunsch said that a major question about the restrictions is whether they lowered the value of the land, and whether $3.8 million was a fair price for the town to pay.

“If you haven’t taken that into account,” she said, “that raises a constitutional question of whether the government is effectively subsidizing a particular religion.”

Robinson said that the effect of the use restrictions on the property’s market value is “close to, if not even beyond, inconsequential.”

Wunsch said that while it is premature to discuss potential litigation, the group has not ruled out any possibilities. Weighing in, she said, could simply involve sending a letter to the town.

“I’m not saying we would sue here,” she said. “I am saying there are very, very serious questions that need to be answered.”

The sale of the property is contingent on Town Meeting approval. A Special Town Meeting has been scheduled for June 13.

Evan Allen can be reached at evan.allen@globe.com.

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