August 15, 2010 4:09 PM
By Josh Barro
I complained last week about conservatives urging bureaucrats in New York City to throw up roadblocks to the construction of a mosque at 51 Park Place in the name of “historic preservation.” Landmark preservation schemes like the one that now covers 16% of Manhattan below 96th Street are an affront to property rights and should be used sparingly, if at all. The last thing we should want are new, pretextual landmark designations designed to serve political goals unrelated to preservation. Continue reading this post.
I disagree with the NR Editors’ conclusion that a boycott of mosque contractors is appropriate (more on that below) but I appreciate their statement that they will “not appeal to the official powers to use the machinery of government to stop this project.” Unfortunately, other conservative figures have continued to push creative ideas to throw red tape at the mosque.
Earlier this week it was discovered that the mosque’s developers do not technically own half the site they plan to develop. Instead, they hold a lease on the property that runs through 2071. They have a right to buy the property at current market value (as determined by an appraisal) and are exercising that right. They also, as I understand it, have the right under their lease to tear down the structure on the property. Development on ground leases, which can be preferable to fee simple ownership for tax or other reasons, is not uncommon in Manhattan.
The developers’ landlord is ConEdison, the power utility serving New York City. While ConEd is a private company, it is subject to regulation by New York’s Public Service Commission. Republican candidate for Governor Rick Lazio has pledged to appoint PSC members who would block the sale of the property.
Of course, a private firm should not ordinarily need approval from political appointees to sell its property. We accept greater regulation for utilities like ConEd because their monopoly position could allow them to exploit consumers—so the PSC is supposed to oversee ConEd with an eye toward protecting ratepayers. The goal is not French-style state capitalism where the regulated firms are used to achieve all kinds of policy goals.
Set aside the fact that ConEd appears to be contractually obligated to sell. A PSC decision to block the sale would not be about protecting ratepayers’ interests. (Indeed, the fact that ConEd agreed to a century-long lease on the property demonstrates that it is not essential to serving customers.)
Meanwhile, the Washington Examiner has run a couple of pieces promoting the idea that the federal government should act to prevent construction of the mosque, for example by “legislation to make Ground Zero a historic preservation site.”
It’s not clear to me exactly what this means. First of all, Ground Zero is a construction site. Four huge office towers are in development there. The general sentiment across the political spectrum seems to be that it’s taken too long to rebuild, not that the area should somehow be “preserved” (other than by construction of a memorial.) Indeed, the government has thrown a ton of money at financing the redevelopment, which had been stalled in part by weak demand for office space Downtown.
Second, the proposed mosque would not be located “at” Ground Zero, but two blocks north of it. So, any federal overlay that restricts development would have to cover not just Ground Zero but an area around it. Again, it is hard to come up with a policy rationale: this area is part of one of America’s busiest office districts, characterized by over a century of high-rise development and redevelopment, which we hope to see continue.
It’s hard to see a justification for “preservation” other than as a pretext to interfere with the mosque. But the use of allegedly broad zoning restrictions to prevent a single project is inconsistent with the rule of law. (Besides which, when zoning or similar restrictions are used as a pretext to block a religious institution, that violates the First Amendment.)
Conservatives rightly bristle at the federal government’s micromanagement of land in the American West, with the highest profile example being the closure of the Arctic National Wildlife Refuge to oil drilling. So why should we invite the feds into land use review in Manhattan? What New York allows to be built in its Financial District is not the federal government’s business.
What I find bizarre about some of the conservative response to Cordoba House is not just the objection to the construction of the mosque, but the conviction that it should be stopped by any means necessary—even if that means violating conservative principles about property rights, rule of law, and federalism.
Part of supporting limited government is understanding that sometimes, things you don’t like will happen, and the government (especially the federal government) won’t do anything about it. Getting to do what you want comes at the price of other people getting to do what they want—including build mosques where you’d prefer they didn’t.
As an aside, I think that some of the concern over this mosque, especially among people who do not live in New York City, is based on a misunderstanding of the geography of Lower Manhattan. This is an area that had significant high-rise development before New York imposed setback requirements and floor-area ratio maximums (limits on how many square feet of building you can put on a lot). As a result, the area is denser and more canyon-like than Midtown.
This means you can be two blocks away from something without any sense that you’re near it. City Hall is four blocks from Ground Zero, but you’d never stand there and think “I’m right near Ground Zero.” There is even a strip club three blocks south of Ground Zero, but nobody seems to have noticed that it is sullying the memory of the place.
In most cities, including Washington, 13 stories constitute a very tall building. But in the environment of Lower Manhattan, Cordoba House will be just another structure—which is not exactly consistent with the view that it is a Towering Monument to Jihad. In short, people are overestimating the extent to which this building will interact with, or be noticeable from, the World Trade Center site.
And this brings us to why I disagree not only with those who would use the power of government to stop the mosque, but also with the NR editors and others who urge private anti-mosque action. In general, my presumption is that it’s OK for people to build what they want on their property, with the burden on opponents to show why that’s such a bad thing. The proper question is not “Why here?” but “Why not here?”
So much of the complaint about the mosque has centered around the idea that, because hijackers acting in the name of Islam attacked the towers, Muslims should maintain a respectful distance. But the developers of Cordoba House (why do I even need to say this?) are not terrorists and did not attack the towers. Placing a burden on all Muslims to keep their institutions out of the Financial District is unfair.
Furthermore, since Islam has 1.2 billion adherents and is not going away, it is important to set reasonable guidelines that promote harmony with Western society—such as, it’s okay to build a mosque in the Financial District, and it’s not okay to blow up buildings in the Financial District. A general policy of exclusion is unworkable.
That said, I would be more open to location-specific objections to the mosque if I believed they were actually location-specific. But opposition to mosque development this year has not been contained to Lower Manhattan. Neighborhood activists in Staten Island were riled this June when they found out the local Catholic diocese planned to sell a vacant convent to a mosque developer.
While some protesters raised the usual pretextual concerns about parking and traffic, others were not so politic. “We just want to leave our neighborhood the way it is—Christian, Catholic,” declared one protester. Another alleged that “mosques breed terrorism” and a third that “the city has had enough terrorism and everything else.” The protest wrapped up with chants of “USA! USA!” The protesters were successful in convincing the Catholic Church to cancel the sale.
The expansion of a mosque in Murfreesboro, Tennessee became an animating issue in primary elections in that state. The Lieutenant Governor of Tennessee declared that he was unsure whether the First Amendment applies to Islam, which might be a cult or a nationality rather than a religion. Lower-profile mosque controversies have also been seen in California and Wisconsin.
If it were generally the case that Muslims are being welcomed into our communities, and allowed to build their houses of worship without public hostility, then it would be possible to condemn the Cordoba House’s site without worrying about alienating and excluding Muslims generally. But unfortunately the complaints about Cordoba House are just the highest-profile example of a wish that Muslims would stay out of our neighborhoods—the trouble being that everywhere is somebody’s neighborhood.
In addition to being morally objectionable, undermining the integration and acceptance of Muslims in American society is a huge strategic error. Newt Gingrich doesn’t want mosques in Lower Manhattan until churches are allowed in Mecca—making the bizarre case that our level of religious liberty is fine so long as it is no worse than in Saudi Arabia. But Cordoba House presents an opportunity to show how we are better than Saudis—and that it is no skin off our back when mosques are built in America, even in the Financial District of Manhattan.
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