Church lifts land clause Church lifts use restrictions for property in Wellesley

The restrictions, outlined in an April 2 purchase and sale agreement, would have barred the town from using the site of what is now St. James the Great Church as an embryonic stem-cell research facility; as a facility where abortions, assisted suicide, or euthanasia would ever occur; or as a professional counseling facility where those practices are advocated. They would have lasted for 90 years.

The restrictions raised questions from the American Civil Liberties Union, as well as residents in town, about whether they violated the constitutional separation of church and state.

Barbara Searle, chairwoman of the Wellesley Board of Selectmen,said that the town sought to change the terms of its deal over concerns that “the ACLU or someone else might enjoin the closing of the deal because of the violation of the establishment clause” of the First Amendment.

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

Sarah Wunsch, a staff attorney for the ACLU, told the Globe last month that the restrictions essentially allowed “a religious entity to control what the public can do with public property.”

Now, according to the amendment to the purchase and sale, those restrictions have been replaced with the requirement that the town use the land for “municipal purposes” for the next 40 years.

The amendment was signed by Cardinal Sean O’Malley on May 25, said Searle, and by the Board of Selectmen on Tuesday. It was effective Tuesday.

The entire board supported the amendment, she said.

“The control of the parcel now is totally in the hands of the town, assuming we buy it,” she said.

The town originally accepted the land use restrictions in part because they prohibited uses that seemed extremely remote, said Town Counsel Albert Robinson. But when others began pointing out possible First Amendment violations, he said, the town began looking for an alternative.

“I do still hold the view that in this particular case, it would have been all right, but my job is to get a deal done, not to drive things into court unnecessarily,” said Robinson. “We came up with the idea of instead of the church imposing its things on the town, maybe we could give the church what it really needed: that the site would not be used in a way that would offend the church.”

The amendment also requires the town to fully demolish the church and rectory within 12 months after the sale closes. The town is not allowed to use the church or rectory for any reason before it is demolished.

The sale of the property is contingent on Town Meeting approval. If it is approved, then the town hopes to turn the 8-acre site on Route 9 into a recreational center.

The sale also depends upon the resolution of a years-long vigil by parishioners protesting the church’s closing.

The parishioners have refused to leave the church since it was shuttered by the archdiocese in 2004, filing appeals with the Vatican to have the parish reopened and to reverse the deconsecration of the church building. Deconsecration turns a house of worship into a secular building.

The parishioners have one final chance to appeal, to the highest court of the Vatican. That appeal was officially filed last week, according to Suzanne Hurley, a spokeswoman for the parishioners.

Wunsch, the ACLU attorney, said that the amended purchase and sale was a good resolution.

“I think it respects the Constitution,” she said. “It allows the town to buy the property without having to be restricted by a particular religious doctrine, and it seems to satisfy the church. I think it’s great.”

Asked whether the ACLU would have considered suing to prevent the closing of the sale under the old terms, Wunsch said that it was impossible to speculate about what would have happened had the town and archdiocese not come to a new agreement.

“I can’t say that we definitely would have sued them,” she said. “But we had genuine concerns. So did people in town.”

A spokesman for the archdiocese said that the church is pleased with the new purchase and sale, and trusts that the town will use the land for its stated goal of building a recreation center, even without the old restrictions.

“The town has been very transparent, very open, and very sincere about what they want to do with that property,” said the spokesman, Terry Donilon. “We trust them; they trust us. You’ve got to trust each other. I think that at the end of the day, we believe this is good for everyone.”

Wellesley will hold a Special Town Meeting on June 13 to vote whether to buy the land.

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