Town Tells Church That This Is a “No Church Zone”

A church searching for a place to hold its weekly services in the Town of Hertford, North Carolina, has been told that various districts within its borders are “No Church Zone[s].” The ACLJ has stepped in to help defend the church against this kind of unlawful discrimination.

For quite some time, our client church has been searching for a suitable space to hold weekly religious services. Many of the available spaces are located in the commercial districts C-1 or C-2 of the Town of Hertford; however, churches are banned altogether from these zoning districts. To make matters worse, in the districts in which a church is permitted, it must at all times seek a conditional use permit subject to approval by the Board of Adjustments. Notably, these same stringent requirements are not imposed on similar uses.

In other words, even where a church is allowed, it’s only allowed if it gets specific approval.

A review of the Town’s zoning ordinance shows that numerous similar uses such as libraries, museums, theaters, art galleries, and restaurants are permitted by right in various zoning districts (and without the approval of the Board of Adjustments in various zoning districts), including the C-1 and/or C-2 zoning districts. No logical reasoning, much less a compelling one, has been provided to justify the Town’s unequal treatment of churches.

Federal law, specifically the Religious Land Use and Institutionalized Persons Act (RLUIPA), protects religious assemblies and institutions from land use regulations that interfere with their religious exercise. Applicable here is RLUIPA’s equal terms provision that prohibits the government from imposing a land regulation “in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” RLUIPA was passed in recognition that

the right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes. . . . Churches in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation. Zoning codes frequently exclude churches in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes. Or the codes permit churches only with individualized permission from the zoning board, and zoning boards use that authority in discriminatory ways.

Time and time again, courts have held that a zoning regulation that treats religious assemblies or institutions less well than “similarly situated” uses including museums, theaters, art galleries, and other philanthropic uses constitutes a clear violation of RLUIPA.

Given the wide array of both commercial and non-commercial permitted uses in the C-1 district, ranging from restaurants to theaters, museums, and art galleries, the Town’s different and unequal treatment of churches by prohibiting them altogether is unjustified and violates RLUIPA.

RLUIPA also forbids the government from

implement[ing] a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution – (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

In the instant matter, the Town’s ordinance prohibiting churches in commercial areas and requiring a conditional use permit in any district in which a church is allowed poses a substantial burden on our client’s religious exercise. In light of the Town’s ordinance permitting an array of both commercial and non-commercial assembly uses by right in the commercial districts, the Town cannot possibly demonstrate a compelling interest and a least restrictive means for imposing such a burden.

To make matters worse, each time our client has attempted to utilize a restaurant or other venue in the area to host an occasional religious gathering, threats have been issued to those venues, and our client has been told it cannot gather for religious discussion or meetings.

The Town’s actions here are not neutral or generally applicable. Instructing citizens (or places of public accommodations) that they cannot gather in a coffee shop or restaurant to engage in religious speech or exercise – while permitting others to do the same so long as their purpose and/or speech is not religious – fails this test and violates the First Amendment.

The ACLJ issued a legal demand letter to the Town requesting that it immediately take action to amend its discriminatory zoning ordinances and cease any discrimination against our client. We hope the Town will quickly comply with our request. We are prepared to file a lawsuit in federal court if necessary.