Mosqued Crusaders

Can anyone stop construction of the mosque near Ground Zero?

The site of the future World Trade Center at Ground Zero

The New York City Landmark Preservation Commission voted unanimously Tuesday to reject landmark status for 45-47 Park Place, the site currently designated for the so-called “Ground Zero mosque,” which will actually be a 13-floor Islamic cultural center. Can anything stop the center from being built?

Not really, and, at this point, very few things can even slow its construction. The downtown district where the center will be built is already commercially zoned to allow houses of worship “as of right,” meaning they don’t need to be reviewed for approval. (In fact, an old building at the site is already housing overflow from the nearby Masjid al-Farah mosque in Tribeca.) There’s no practical way to rezone the district, either. Such an action would take many months to complete and couldn’t be applied retroactively.


Tuesday’s vote at the Landmark Preservation Commission might have ultimately prevented any alterations to the building that would have affected its historical status. But even if the commission had decided to grant landmark status, it would not affect how the building is used—a mosque would be fine so long as the building remained intact. Given that the plans now call for the demolition of the existing building to make way for the new Islamic center, this would have been a major impediment, though not a deal-breaker. The commission’s decision is final and cannot be appealed. (If the vote had gone the other way, the City Council could have overturned it.)

The local government might try to scuttle the project using a different strategy. For example, it could say that a mosque would obstruct the city’s “compelling interest” in honoring those who died in the Sept. 11 attacks. There are, of course, First Amendment religious-freedom flaws in that argument, not to mention the Religious Land Use and Institutionalized Persons Act—a federal statute from 2000 that bans faith-based discrimination in land-use decisions. The city would face a very difficult legal case, and also an expensive one: According to federal law, Congress is required to shoulder the attorney fees for the defendant. Another option would be to hamper the construction project by enforcing every last building code on the books, which cover all sorts of minutiae. However, that process would only delay construction a bit, rather than stopping it altogether. In any case, Mayor Michael Bloomberg has announced his support for the mosque.

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Explainer thanks David Reiss of Brooklyn Law School, Marci Hamilton of Cardozo School of Law, Roderick Hills Jr. of New York University School of Law, and Richard Ford of Stanford Law School.

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