protects churches in zoning battles
By John W. Kennedy
(February 16, 2003)
Leaders at Cottonwood
Christian Center, a nondenominational church, had scouted
for five years to find a suitable location to meet the needs
of the growing church in Orange County, Calif. They spent
an additional year and $13 million buying different contiguous
sections of real estate from four property owners, then
another year submitting plans to the city of Cypress.
After the church
prepared necessary plans and paperwork to obtain permits,
the city three days later notified Cottonwood Pastor Bayless
Conley that it planned to seize by eminent domain 17.9 acres
the church had purchased.
Costco, a giant
discount warehouse, had apparently been searching for real
estate in the area. And, unlike Cottonwood, Costco’s
presence in the community would mean additional tax revenue
for the city. Allegedly, the city wanted to take away church
property and turn it into commercial real estate.
The church filed
suit a year ago with help from the Becket Fund for Religious
Freedom, a Washington, D.C.-based religious liberties organization
that has two dozen other church zoning lawsuits pending.
In August federal judge David O. Carter granted a preliminary
injunction to halt the city from seizing the land. “Preventing
a church from building a worship site fundamentally inhibits
its ability to practice its religion,” Carter wrote
in a 36-page opinion, citing the First Amendment and the
Religious Land Use and Institutionalized Persons Act.
Until the 1950s,
churches in most U.S. cities had fairly free reign to build
anywhere without enduring a lengthy and often expensive
public hearing process. But increasingly, according to some
church leaders, congregations wanting to relocate or expand
existing facilities meet resistance from both neighbors
and city officials anxious about increased traffic, a lower
tax base, and parking and noise problems.
legal counsel with the Assemblies of God and editor of Church
Law & Tax Report, notes that RLUIPA, passed by Congress
in 2000, is a successor to the Religious Freedom Restoration
Act, which the U.S. Supreme Court ruled as unconstitutional
in 1997 as it applied to state and local laws and regulations.
specifies that state and local governments cannot subject
religious organizations to a zoning or other land-use regulation
that imposes substantial burdens on the free exercise of
religion unless the law is supported by a compelling governmental
interest and is the least restrictive means of furthering
that compelling governmental interest,” Hammar says.
can’t keep a church out of a neighborhood just because
it wants less traffic or because neighbors don’t like
Sunday mornings disturbed by noise and traffic,” says
Kevin “Seamus” Hasson, 45, Becket Fund president.
“It takes a truly compelling interest. This [attempted]
seizure [in Cottonwood] was simply a hardhearted, cold-blooded
Hammar says a
city can restrict or exclude various kinds of uses in residential
zones so long as it does so consistently. In most communities,
he says, churches have no inherent right to locate wherever
they want, especially in an area that would disrupt the
existing land use.
city cannot exclude religious congregations from residential
zones in order to preserve the peace and tranquility of
those zones and then allow schools, hospitals, Wal-Marts,
country clubs and other activities that would create just
as much traffic and noise as religious congregations,”
Hammar says he
empathizes with homeowners concerned about a megachurch
locating across the street.
be acknowledged, however, that churches are different from
Wal-Marts,” he says. “The Constitution does
not protect the right to shop at discount stores. But it
does guarantee the free exercise of religion.”
Center runs two Saturday night and four Sunday services,
with 4,000 attending. The existing structure, located in
Los Alamitos, has a seating capacity of 700.
not like there’s a lot of options at finding large
parcels of land,” Conley says. “It’s not
a luxury for us to get a bigger property; it’s a necessity.”
It now appears
the church will sell its 18 acres to the city and move onto
28 acres that are part of a defunct golf course nearby.
That property will cost more than the original 18-acre site.
Aside from the
legal expenses, Conley says he is more concerned about the
cost of human souls.
to turn people away every week because of our limited space,”
he says. “A lot of these people are at the end of
their rope looking for answers. It’s breaking my heart
when they can’t get in the building.”
The lengthy fight
has been worth it to Conley. “Because of [our] victory,
other cities are not as willing to tangle with churches
and push them out illegally,” he says.
that RLUIPA will make church conflicts with zoning authorities
rarer. But Hasson predicts more protracted battles. “The
more valuable land becomes and the more pressed city budgets
become, the greater the temptation is going to be to deny
land-use permits to houses of worship,” Hasson says.