Churches’ zoning protection irks locals
Finding that religious institutions often were discriminated against in land use decisions, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. The law prohibits local governments from imposing regulations that place a “substantial burden” on religious institutions without a demonstrable, “compelling interest.” Now, several cities are challenging RLUIPA, saying it places an undue burden on them.
The case of Boulder County, Colo., vs. the Rocky Mountain Christian Church, a mega-church that already has expanded five times, could set a precedent. One year ago this month the county’s board of commissioners partially denied a sixth request that would more than double the size of the church’s facility to 240,000 square feet, claiming the expansion would be an over-intensive use of agricultural land, says County Attorney David Hughes. After several public hearings, the board ruled that its denial of portions of the request did not place a “substantial burden” on the church and was not in violation of RLUIPA. The county also could revisit the issue if a federal ruling determines the decision was not in compliance. However, the church has proceeded with several claims against the county. If the church wins, says Graham Billingsley, director of the county’s Land Use Department, the county could see a rise in religious-use requests. “The impacts of these uses would unalterably change the character that we have worked so long and hard to preserve,” he says.
RLUIPA allows religious institutions that challenge local zoning laws in court to recoup their attorney’s fees from the cities if they win, says Marci Hamilton, New York City’s Cardozo School of Law professor and local government advisor on First Amendment issues. Therefore, governments are motivated to settle early to avoid the possible cost, Hamilton says, and threats of RLUIPA lawsuits are forcing cities to abandon their own zoning regulations. “The federal government is saddling [cities] with costs they shouldn’t have to bear,” Hamilton says.
For example, the Congregation Kol Shofar synagogue recently threatened to sue Tiburon, Calif., under RLUIPA because the city denied a proposal to expand the synagogue’s main building and pre-school. Hamilton says the Tiburon neighborhood’s zoning prohibited weekend parties, and Kol Shofar’s proposal to hold celebrations 40 out of 52 weeks of the year would violate the ordinance. However, rather than engage in a costly lawsuit, the city compromised, allowing fewer weekend events with stricter time limits.
RLUIPA proponents say it levels the playing field between religious and secular interests. Local officials often deny proposals from religious institutions for many reasons, says Anthony Picarello, vice president of the Washington-based Becket Fund for Religious Liberty, which litigates in favor of RLUIPA claims. There could be pressure from residents opposed to a church’s request, or officials may be reluctant to lose developable land to non-taxable entities. “It is a grave mistake [for cities] to address their financial woes on the back of churches,” Picarello says.
The Chicago-based American Planning Association (APA), does not believe religious institutions should have preferential treatment under local land use laws. APA encourages communities to connect zoning regulations to comprehensive plans to show that the rules are intended to implement community goals. “Public hearings, no matter who the applicant might be, must be fair and impartial,” says Lora Lucero, APA staff attorney.
Annie Gentile is a Vernon, Conn.-based freelance writer.
