February 22, 2001 | Read Time: 6 minutes
By DEBRA E. BLUM
In Colorado Springs, three religious organizations are taking legal steps to make sure that a new homeless shelter is built. Their complaint: City residents who have sued the city to block the shelter are limiting the charities’ free exercise of religion.
In New Jersey, an evangelical church has sued the city of Long Branch, saying its religious liberties have been breached by a zoning rule that prevents it from opening up a sanctuary and a soup kitchen.
And in Ohio, a church has sued the city of Fairlawn for prohibiting the church from putting an addition on its 40-year-old building in a neighborhood now zoned exclusively for residential use.
In those and a handful of other court actions around the country, religious organizations are turning to a new federal law that gives religious groups a leg up in zoning disputes with local authorities.
The new law — the Religious Land Use and Institutionalized Persons Act — says that zoning rules cannot place “a substantial burden” on the exercise of religion unless local officials can show a compelling governmental reason, such as public safety, for the restrictive regulations.
The law does not force cities to rewrite their zoning and planning regulations. Nor does it exempt religious organizations from regular procedures to gain building, occupancy, and use permits. But the act does make it harder for local authorities to use zoning rules to prevent religious groups from expanding houses of worship, moving into certain neighborhoods, or using their facilities to serve the poor. The law, which went into effect in September, has garnered attention lately because of President Bush’s push to get religious groups more involved in delivering social services.
Religious groups had argued in favor of the law, saying that their organizations have been unfairly discriminated against in zoning decisions, often because municipal officials want to limit the number of groups that are exempt from property taxes, or to curtail activities, such as serving meals to the homeless, that would introduce new people into a neighborhood.
Opponents of the law, including city leaders, say that the law takes away local control of zoning issues and real-estate development. And they worry that religious organizations will be able to evade rules — such as those that govern parking, noise, and building size — meant to maintain a certain quality of life for residents and businesses.
Douglas Laycock, a constitutional-law professor at the University of Texas at Austin, says that zoning conflicts involving religious groups have become more numerous and more contentious in the past decade.
“Land use may actually be the biggest religious-liberty issue in the country,” he says. “Zoning is a non-sexy, low-visibility problem, so it hasn’t gotten that much attention, but in many communities it is astonishingly difficult for churches and other congregations to find a place to locate, or to be allowed to expand in their present location.”
Government’s Role
Religious organizations that have faced such frustrations are embracing the new law.
“This should be the clincher for us,” says the Rev. Kevin Brown, founder of the Lighthouse Institute for Evangelism, which has been trying on and off for seven years to gain permission to renovate and occupy a two-story building it owns in Long Branch, N.J. Lighthouse has amended a lawsuit it had filed against the city last summer to include charges that Long Branch has violated the land-use act.
Andrew Indeck, a lawyer representing Long Branch, says that Lighthouse had failed to go through the proper steps to gain a special zoning permit to operate in a neighborhood reserved for commercial use. Thus, he says, the city did not discriminate against the church or violate the new land-use law.
In addition, he says, the city is challenging the law’s constitutionality, saying that it infringes on the authority of local governments, and is too broad. Municipalities in at least three other of the land-use cases are also challenging the law’s constitutionality.
Four years ago, the Supreme Court struck down as unconstitutional the Religious Freedom Restoration Act, which had some of the same elements as the new land-use law. The court said that the 1993 act went too far in siding with churches against municipal officials.
But Eric Treene, litigation director at the Becket Fund for Religious Liberty, a Washington advocacy group, says that the new law was much more carefully drafted and is more narrowly tailored than its predecessor.
He adds: “What gets people is that it does take away some of the power that municipalities have gotten used to in recent years. But it doesn’t give to churches any rights they didn’t already have.”
The case in Colorado Springs may present its own challenges to the new law because a group of religious charities are fighting city residents, not the city itself, which had granted permission to the American Red Cross to build a center that would include a homeless shelter, soup kitchen, and other services for the poor.
Catholic Charities, along with Ecumenical Social Ministries of Colorado Springs, and SET of Colorado Springs, which provides health care to uninsured people, would be one of about a dozen religious, secular, and governmental organizations that would operate at the center. And, they say, their rights as prospective tenants in the building ought to be protected under the new land-use act.
Residents of the neighborhood have sued the city of Colorado Springs and the Red Cross, arguing that neighborhood zoning rules bar privately run facilities such as the planned center.
A court hearing on the case is scheduled for April. If the court denies permission to build the center, the religious charities would press their claims under the land-use act.
David H. Krall, the residents’ lawyer, says the act should not apply. He says that the neighbors are not the equivalent of local zoning authorities, and that the Red Cross, not the religious charities themselves, was the entity that sought the permits. In any case, he says, zoning, not religious liberty, is the issue.
“We think it’s strictly a subterfuge or harassment more than anything else,” Mr. Krall says of the land-use arguments made by Catholic Charities and the two other organizations.
First Ruling
So far, only one court challenge has been resolved under the terms of the new law. In December, Haven Shores Community Church made a court-approved agreement with the city of Grand Haven, Mich., allowing the church to rent a storefront space to hold its worship services. Grand Haven’s zoning rules allow for private clubs, fraternal organizations, and other types of public assemblies in the shopping district, but the city’s zoning board had denied the church permission to use the property for religious meetings.
Mr. Treene of the Becket Fund, which represented the Grand Haven church, says he hopes the law raises awareness among government officials, civic leaders, and zoning boards that not every church is a building with stained glass and a steeple.
“The law clearly says that before a town can burden a religious group — by not letting it use a storefront space that can be used by another kind of public assembly, like the Masons — the town better have a narrowly tailored, good reason to do so,” he says.
