[The following is the decision of the Council of State, Division of Governmental Jurisprudence, on the higher appeal of
1.) the Arent van 's-Gravesande Foundation, located at Leiden;
2.) J. Kloeg, living at Leiden;
3.) the Leiden American Pilgrim Museum Foundation, located at Leiden, appellants against the decision of the regional court at The Hague, dated 12 October 1999, in the case between the appellants sub. 1 and sub. 2, and the mayor and aldermen of Leiden.
Translation by Jeremy D. Bangs.
Note that the decision is to be found in the paragraphs called "Considerations" numbered 2.1, 2.2, etc. Essentially, the appeal of the Leiden American Pilgrim Museum was declared not admissable because the museum had made no objection in 1995; nor had the museum made any appeal on a decision regarding such an objection. This ignores the fact that the foundation was created in 1997 as a possible valid reason for inactivity in 1995. The court also decided that the town was justified in its decision that deterioration, vandalism, and graffiti could be used as rationales for granting a demolition permit. I have introduced a few explanatory words and a comment or two, identified by being within brackets. The details follow:]
1. Course of the Case
By a decision of 20 December 1995, the mayor and aldermen of Leiden (hereafter: mayor and aldermen) granted conditional permission to the Living Sector of the Department of Building and Living of the town of Leiden, for the demolition of the wall remains of the former Vrouwenkerk on the Vrouwenkerk churchyard, as well as granting permission for altering the protected monument. By decisions of 26 March 1998, nrs. 95.0480 M (revised) and 95.0480 S (revised), the mayor and aldermen declared the objections, made by appellant sub. 1 (hereafter, the Arent Foundation) and appellant sub 2 (hereafter, Kloeg), to be groundless; and they upheld the contested decision, with the understanding that this is revised in two decisions and that the conditions of the monument permit are altered. This decision and the advice of the Commission for Appeals and Written Objections, of 22 July 1996, are attached.
By a decision of 12 October 1999, sent on 18 October 1999, the regional court at The Hague (hereafter, the court) declared the appeals instituted by the Arent Foundation against the decision nr. 95.0480 M (revised) and by Kloeg against both decision, to be groundless. This decision is attached.
Against this decision, the Arent Foundation went into higher appeal, by a letter of 11 November 1999, which arrived at the Council of State on 19 November 1999; Kloeg went into higher appeal by a letter of 25 November 1999, which arrived at the Council of State on 26 November 1999; and appellant sub 3 (hereafter: the Museum), went into higher appeal by a letter of 29 November 1999, which arrived at the Council of State on 30 November 1999. These letters are attached.
By a letter of 17 July 2000, the mayor and aldermen sent in a memorandum in Reply.
Given the opportunity, the Museum sent a reply.
The Division [of Government Jurisprudence, of the Council of State] handled the case at a sitting on 7 November 2000, where the Arent Foundation appeared, represented by Ir. Drs. W. Kuyper, chairman; Kloeg appeared in person, assisted by Mr. L. B. Sauerwein, lawyer at Amsterdam; the Museum appeared, represented by Dr. J. D. Bangs, chairman; and mayor and aldermen appeared, represented by Mr. R. Lever, lawyer at Leiden.
2. Considerations.
2.1. The Museum did not make an objection to the primary decision nor an appeal against the decision on objection. It requested to be given the opportunity to participate in the case, on the basis of article 8.26, first paragraph, of the General Law of Government Jurisprudence (Awb). To this request the court initially decided favorably, but rejected it in the decision [here] questioned. It is not stated and it does not appear that the Museum cannot reasonably be blamed for not having made an objection and not having made an appeal. [The Leiden American Pilgrim Museum dates from 1997!] The conclusion from the foregoing is that article 6.13 in conjunction with article 6.24 of the Awb stands in the way of admitting the higher appeal of the museum. The Division therefore does not arrive at a judgement about the decisions of the court about allowing the Museum to be or not to be a party in the case.
2.2. According to the [submitted] pieces, the immediate cause of the decisions to which objections have been made was "the decrepitude" of the Vrouwenkerk churchyard, which has, according to the mayor and aldermen, become gradually apparent. The mayor and aldermen have pointed out in the decision about the objection, that the wall remains give the square a messy appearance. The low respect in which the square was held is reinforced by the fact that the remains have been the incidental object of vandalism and graffiti, according to the mayor and aldermen. In the framework of re-valuation of the square, new buildings were constructed on the southeast side [right across the church nave!] in the beginning of the 1990's, by which the backside of the buildings in the Haarlemmerstraat have been hidden from sight. Because of this, the square has become smaller. A part of the wall remains has been hidden from sight by this new building. Demolition of the surviving wall-remains is the following step in the complete re-design of the Vrouwenkerk churchyard intended by the mayor and aldermen.
2.3. The Division agrees with the judgement of the court, that it cannot be maintained that the mayor and aldermen, in weighing the relevant interests, could not have acted reasonably in granting the monument permit and granting a demolition permit, considering also the advice of the National Monument Service, of 29 September 1995, and of the Monument Management Commission of 21 September 1995. That these advices were not arrived at in a careful manner did not appear to the Division any more than it did to the court. The advices are, it is true, brief, but not improperly motivated. Although the National Monument Service, in its further motivation of its advice, by letter of 11 May 1999, proposed that as an accomodation in the conflict it could be decided to allow a part of the remains of the choir of the church to stand, the national Monument Service did not in this addition withdraw its advice of 29 September 1995 [which did not in fact advise demolition but merely said that parts added in the 1980's could legitimately be removed!]. Both advisors were able to go along with the fact that mayor and aldermen let the importance of urban planning improvements, which result in the removal of the remains of the church, outweigh the importance of the preservation of the historically valuable monument. The Monument Law of 1988 offers no grounds for the judgement that considerations of an urban-planning nature should not play a role in the decision about preservation of a monument.
2.4. The Division takes note, in the above, that the authority cannot be taken away, - of the mayor and aldermen to change their policy, that was originally directed towards the preservation of the wall remains, on the basis of new developments. The argument of the Arent Foundation, that, by allowing new construction on the southeast side of the Vrouwenkerk churchyard, by which wall remains are already supposed to have been demolished, the mayor and aldermen set into motion a development that left them practically no other choice than to proceed to grant the permits in question, cannot, whatever the case, lead to the judgement that the permits in question cannot be maintained. The decisions which were basic to that construction could be opposed in law, couldn't they, - which did happen, although without success.
2.5. Equally irrelevant is whether the Minister of Education, Arts, and Sciences (now: Education, Culture, and Sciences) granted a permit, as is required by article 19 of the decree of the minister, dated 16 January 1936, no. 381, Afd. K.W., whenever alterations are made to a monument for whose preservation national subsidy has been granted. If there is any infringement of that article, it could only result in a demand for restitution of the subsidy.
No support can be found in thge Monument Law of 1988 or in the municipal construction code for the position that the Council of Culture should have been asked for advice.
2.6. The Division points out finally that the appeal to article 5 of the Convention for the Protection of the Archaeological Heritage of Europe, dated 3 October 1985, fails, because that regulation is directed to the member nations with an instruction norm and therefore cannot be used for a direct application in the case in question.
2.7. From the foregoing it follows that the higher appeals of the Arent Foundation and Kloeg are without grounds. The decision to which objection was made comes into consideration for being upheld.
2.8. There is no reason for a judgement on the costs of the case.
3. Decision
The Division of Governmental Jurisprudence of the Council of State doing justice in the name of the Queen:
1. declares the higher appeal of the American Pilgrim Museum Foundation not admissable.
2. upholds the decision to which objection had been made.
Thus determined by Mr. J.A.E. van der Does, Chairman, and Mr. E. Korthals Altes and Mr. J.A.M. van Angeren, members, in the presence of Mr. E.D.A.M. Zegveld, officer of the state.
Published 23 January 2001.
[The text of my appeal to the Council of State, against the decision of the regional court, from 1999:]
Dear Sirs:
For two reasons I doubt that the decision is proper.
When I read in the newspaper that the original judge in this case, Mr. Westenberg, wished to receive further information about the historical and cultural significance of Leiden's Vrouwekerk, I contacted him and at his request provided him with a copy of the charter of the Leiden American Pilgrim Museum Foundation (founded 1997), of which I am the chairman. He concluded that the foundation should be recognized as a legitimate party in the suit. I then at his request submitted information, a copy of which is enclosed. On arrival at the hearing on 15 September 1999, I was informed that Mr Westenberg had been replaced and that the new judge in the case did not agree that the foundation should be recognized as a legitimate party in the case. I was not allowed to speak also because I did not have a letter form the foundation to identify me as its spokesman, although at no point before then was it stated that such a letter was necessary. I think that it is possible that the opinion of Mr Westenberg should not be set aside by another judge on the same level of your court structure, because this would mean that the results of the legal process are dependent on random chance and idiosyncratic opinion. It suggests that a party in a case might either through influence or luck achieve a result that might just as easily be the opposite if heard by a different judge at the same level of the judicial structure.
More generally, I noted that the City of Leiden, as a party in the case, exercised its authority to deny some of its citizens the right to be heard as parties opposing the town's plans. This intermingling of activity has been declared unjust in a similar case involving citizen's protests to town plans regarding a park in Groningen, when the town attempted not to allow citizens whose houses did not face the park to express a legal objection to plans affecting the park. The court disallowed the town's refusal. In Leiden the town has similarly denied protests because the people protesting did not live in houses facing the Vrouwekerkhof, while the town justifies its intention for demolition by reference to over-riding town planning interests, which thus are claimed to represent the interests of the entire town. I think the principle established in the case in Groningen logically requires that Leiden allow all its citizens who are interested in preserving the town's cultural heritage to be heard, and that therefore the procedure followed by the town of Leiden in this case may be flawed.
Therefore I request reconsideration of the case, hoping also that you will be aware that the town of Leiden has paid inadequate attention to the international significance of the Vrouwekerk as a symbol of international friendship in the context of the Dutch-American cultural heritage,
Sincerely,
Dr. Jeremy D. Bangs
Chairman, Leiden American Pilgrim Museum Foundation