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Zoning & Religious Land Use

The ACLJ has been active in defending the rights of churches and religious organizations against overzealous zoning authorities. Congress has enacted laws designed to protect churches and religious organizations from discriminatory land use regulations. It is import that as a religious organization you understand your rights to use your property for religious purposes.
Short Legal Brief
Legal Documents

Below is a short legal analysis prepared by ACLJ attorneys on this topic. A more in-depth legal analysis is available here.

In general, Churches and religious organizations are regulated by the same Zoning laws as other organizations. Unfortunately, Cities and local governments often enact zoning ordinances that are specifically designed to prevent churches and other tax-exempt organizations from building in certain areas in order to increase tax-revenue. While this is often the primary motivation for the ordinances, cities rarely admit it, justifying the regulations on other grounds such as the prevention of fraud or ensuring that all contribute equally to carrying their legally mandated share of the tax burden. In some instances, however, cities have specifically claimed increasing the tax-revenue as their primary justification for denying a church’s application for a building permit.

The Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed by Congress in 2000 to protect Churches and religious organization from zoning ordinances that target churches for different treatment, or that  place a “substantial burden” on a person or organization’s ability to worship. The Supreme Court upheld the constitutionality of RLUIPA in the 2005 case of Cutter v. Wilkinson, 544 U.S. 709 (2005).

Equal Protection

RLUIPA forbids disparate treatment of religious organizations, and requires that a “religious assembly or institution” be treated on “equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1) (2006). This means that if assemblies of persons are allowed in a particular zone, but churches that would constitute a similar assembly are excluded, the regulation probably violates RLUIPA.

For example, in Petra Presbyterian Church v. Village of Northbrook, 489 F.3d 846 (7th Cir. 2007), the United States Court of Appeals for the Seventh Circuit  held that a municipality could not allow non-religious membership organizations and community centers to locate within an industrial zone while simultaneously excluding churches. The court noted that a violation of RLUIPA’s equal terms provision must be remedied by either permitting religious organizations in the zone or forbidding analogous non-religious uses in the zone. Id. at 849.

Substantial Burden

If the Church is able to show that an ordinance imposes a substantial burden on it, then the zoning authority may only apply that ordinance to the Church if it shows that it has a compelling interested to do so and that it used “the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1 et seq (2006).

There is no bright-line rule as to what constitutes a “substantial burden;” rather, a “case-by-case, fact-specific inquiry [is necessary] to determine whether the government action or regulation in question imposes a substantial burden on an adherent’s religious exercise . . . .” Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004).

Courts have found that denying a permit to build a Parish Center would be a substantial burden when the Parish Center “would serve as a meeting place for the parish counsel, would include an office for religious education, could facilitate gatherings related to church services and would, in the process, alleviate crowding in the rectory,” Mintz v. Roman Catholic Bishop, 424 F. Supp. 2d 309, 321 (D. Mass. 2006), even though the church could have made “certain accommodations within its existing structures to meet its ongoing religious needs.” Id.

Similarly, in Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007), the court found that a substantial burden was imposed on a Jewish School when the Zoning board denied the school’s application to expand their facilities to meet a growing student body’s needs. Since these facilities would be used for religious instruction, the court found that the permit denial placed a substantial burden the school’s religious exercise. The court noted that denying a permit to build a “gymnasium to be used exclusively for sporting activities,” or to build “office space” would not impose a substantial burden on the school’s religious exercise. Id. at 347-48. Thus, under this court’s holding, “[t]here must exist a close nexus between the coerced or impeded conduct and the institution’s religious exercise for such conduct to be a substantial burden on that religious exercise.” Id. at 349. Some courts use the availability of equally acceptable alternative venues as a significant factor in determining of a burden is substantial, or merely an inconvenience. Albanian Associated Fund v. Twp. of Wayne, 2007 U.S. Dist. LEXIS 73176, *2, *28 (D.N.J. 2007).

Compelling Governmental Interest and Least Restrictive Means

“Under RLUIPA, once a religious institution has demonstrated that its religious exercise has been substantially burdened, the burden of proof shifts to the municipality to prove it acted in furtherance of a compelling governmental interest and that its action is the least restrictive means of furthering that interest.” Westchester Day Sch. 504 F.3d at 353. While there is ample Supreme Court precedent describing the compelling interest standard as a high hurdle to leap, it is a nebulous concept that is difficult to define. In Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) the Court described “compelling interest” as an “interest[] of the highest order.” Id. at 546.

In Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002), the court held that the generation of tax revenue was not a “compelling” interest sufficient to justify a substantial burden upon the free exercise of religion. The court explained:

If revenue generation were a compelling state interest, municipalities could exclude all religious institutions from their cities. “So universal is the belief that religious and educational institutions should be exempt from taxation that it would be odd indeed if we were to disapprove an action of the zoning authorities consistent with such belief and label it adverse to the general welfare.”

Id. at 1228 (internal citation omitted). The court also noted that substantially burdening religious practice is rarely the least restrictive means of furthering the government’s interest in revenue generation: “[m]unicipalities have numerous ways of generating revenue without preventing tax-free religious land uses.” Id. at 1229.

Additionally, in Elsinore Christian Center v. City of Lake Elsinore, 291 F. Supp. 2d 1083 (C.D. Cal. 2003)1 the court held that the City’s denial of a church’s request to use property in an economically depressed downtown commercial area for religious services violated RLUIPA. After finding that a substantial burden was imposed on the church’s religious exercise, the court held that the city’s stated interests—maintaining needed services provided by the previous occupant (a grocery store and recycling center), preventing the loss of tax revenue, and eliminating blight—were not “compelling” for RLUIPA purposes. Id. at 1093. The court explained that

[t]he maintenance of property tax revenue is a potentially pretextual basis for decision-making that appears to have been a specific target of RLUIPA. The Act’s drafters were concerned that where, as here, a church is required to seek a permit, “the zoning board [does] not have to give a specific reason [for denying the permit]. They can say it is not in the general welfare, or they can say you are taking property off the tax rolls.” Indeed, if a city’s interest in maintaining property tax levels constituted a compelling governmental interest, the most significant provision of RLUIPA would be largely moot, as a decision to deny a religious assembly use of land would almost always be justifiable on that basis.

Id. (citations omitted).

Under RLUIPA, religious assemblies or institutions may not be prohibited in the drafting or application of regulations while non-religious assemblies are allowed to be carried out in the same area. In addition, even if a religious organization is not treated differently but the regulation imposes a substantial burden on the organization’s religious exercise, the city must show that that regulation is the least restrictive means possible to meet a compelling government interest.

1 rev’d on other grounds by 2006 U.S. App. LEXIS 21571 (9th Cir. 2006) (unpublished).

Can the government use eminent domain to take over a church?

Under an eminent domain process - assuming that your situation qualifies for eminent domain - the government has to give you fair market value for your property. The Fifth Amendment to the United States Constitution says that private property cannot be taken for public use without "just compensation." Now, you've got to get lawyers in there to negotiate what that fair market value is. A lawyer might also be able to fight the eminent domain under a statute called the Religious Land Use and Institutionalized Persons Act (RLUIPA). There are ways in which your church can be protected, and we should be protecting the churches from being seized through eminent domain.

I pastor a church with about twenty members, and we have services on Sunday mornings and evenings inside a residential neighborhood. Can anyone legally stop us from meeting?

A Bible study, a prayer meeting or a service like this is fine. There are two issues that come up here. One is parking -- you can't have a degree of parking that creates a nuisance in the community. The other issue is noise -- the volume of what's going on inside the house obviously can't be such that it violates the laws concerning residential noise. Just as somebody could have a Super Bowl party or a Monday night football game party every Monday during the season, you can have a prayer meeting. We've had cases where cease and desist orders have actually been issued to stop prayer meetings from taking place in individual homes. However, we've won those cases consistently. So yes, you have the right to meet; but if you reach such large numbers that it produces a parking situation or is a full church operation, then you have to comply with the local zoning law. If it's a home Bible study or a home fellowship group, there is no problem whatsoever. If it becomes a parking situation, that's where the difficulty comes in.

Is it legal for a city to deny a zoning permit to a church because the building they wish to acquire is in a commercial, agricultural, or residential zone?

A church cannot be denied a zoning permit because it's in a commercial zone and the city would lose tax revenue by granting the permit. The reason that tax benefits are given to churches, and to religious organizations generally, is the idea that they give something back to the community -- whether it's after-school childcare, feeding the homeless, meeting the needs of the less fortunate in the community, etc. That's the reason you give tax-exempt status, and that overrides the need for tax revenue. There's a piece of legislation that was passed by the House and the Senate and signed by the President in 2000, called the Religious Land Use and Institutionalized Persons Act (RLUIPA). Under RLUIPA, cities cannot zone churches out of commercial areas without what's called a "compelling governmental interest." So, they can't just deny your request for a zoning permit simply because the building is in a commercial zone. So what kind of tactics might the city use? The normal process goes something like this: The first line of attack may come from either the Zoning Commission or your Building And Use Commission of the city. If they stop you at that level, you can usually go to the full County Commission and get a variance. If they deny the variance, I'd say that's a good way to get into court.

My church wants to either build on our property or sell an acre, but the city won't issue a building permit to us because we are near an airport. What are our rights?

The FAA has regulations concerning the height of buildings in the area surrounding an airport. When you've got an airport situated within a community, height restrictions are put in place, because you want to make sure that there is some type of buffer for aircraft to take off and land safely. But generally you're allowed to develop around airports, and especially if you've owned the property for some time. We had a similar situation surface recently in California, and the same statute that would apply in that case--the Religious Land Use Protection Act (RLUPA)--would, in my view, also apply to this case. The way you're describing it, what happened here was a misuse of zoning laws, and as long as you are within those height restrictions there should be no other restrictions.

The city planning commission has denied my church's application to use a building we are currently renting for services, because of our proximity to a club that sells alcohol. Is that legal?

There are some options. You could ask for or agree to a waiver with regard to the enforceability of that ordinance -- in other words, you could locate five hundred feet away and say, "We're not going to seek the removal of this particular business establishment from the area." Number two, there is a federal regulation called the Religious Land Use and Institutionalized Persons Act (RLUIPA), which does protect religious institutions -- churches -- from these kinds of arbitrary zoning decisions. In fact, RLUIPA was specifically designed for situations like the one you're describing. This is certainly what we would call a novel and creative argument -- the idea that if you locate a church near an establishment that sells alcohol, it devalues the value of that business. Usually, it's the reverse: they don't allow places that serve alcoholic beverages to be within 500 feet of a church, because of concern over the impact that such a facility would have on the church -- not the impact of the church on the place that sells alcohol. But again, you could agree to a waiver. You said you're willing to do that, and they should allow you to rent the facility. Again, this is certainly a novel twist to a zoning situation. The idea that now the standard usually applied to sexually-oriented businesses is being applied to a church! Let me explain: the standard is, does the existence of a sexually-oriented business create what's called a "negative secondary impact" on property values, increased crime, etc.? Studies have shown that it does. The Supreme Court has held, as recently as the 2001-'02 term, that applying that standard was still constitutional. Here you've got the reverse. Are we now going to have urban design reports showing that churches have a negative secondary impact on sexually-oriented businesses or establishments that serve liquor? I can't imagine that's what's going to be, but that's exactly what they're arguing in this particular case. You know, it's interesting to note that there was a time not long ago when a church or a place of worship was considered an enhancement to the community, not something that reduces business values. This city just has it absolutely backwards, and we're glad that we have the Religious Land Use and Institutionalized Persons Act to help in this situation.

What are the rights of a church in holding a three-day festival on church grounds?

A church should be allowed to conduct a religious festival. Disturbing the peace - which is what your neighbors would have to allege to prevent such a festival - is a pretty tough standard for them to meet. Now, it may be that the traffic flow is so significant and so difficult that it is causing problems in the neighborhood. But the fact of the matter is, short of that, it would be very difficult to prohibit a church from having a church picnic, festival or other event - what's called an incidental use of its property, because it's perfectly legal. In a situation like this, the standard that the city would have to meet is that this is a public nuisance. And I will tell you that a nuisance is a hard standard for them to meet, unless they can show, for instance, that the parking is causing such congestion in the area that it's beyond what the parking facilities can hold, and causing danger for children in the community in terms of drivers having difficulty seeing children as they're crossing the street. That would be the only basis upon which they could have you move. But incidental uses of property, especially when related to the mission and function of the church, are perfectly allowed.