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For over three hundred years, church steeples have stood as landmarks in the center of cities and villages across this country. Today, however, many municipal officials are doing whatever they can to keep churches out of town.
In 1936 Edward M. Bassett, a principal author of the first modern municipal zoning law adopted by the City of New York in 1916, wrote a book titled Zoning. For years city planners regarded it as a classic text on the municipal regulation of land.
When that landmark resolution was drafted, Bassett wrote, it did not occur to its creators "that there was the remotest possibility churches, schools, and hospitals could properly be excluded from any districts."
In 1949, however, the California Court of Appeals ruled that municipalities could ban churches from residential areas. Both the California State Supreme Court and the United States Supreme Court refused to review that decision. Today many communities reject church applications for building permits in a residentially zoned district.
More recently the Smith case, decided by the United States Supreme Court in April 1990, has been cited as a precedent forbidding the construction of religious facilities. (See Christianity Today, July 16, 1990, p. 48 and October 7, 1991, pp. 38-41.) In Oregon Employment Division v. Smith, the court ruled any "reasonable law" should prevail even if it creates "incidental" burdens on the freedom of religion.
This and other rulings suggest that new, relocating, and growing churches may be living in an age of limits.
The Smith case leaves defining the scope of religious liberty in the United States to federal, state, and municipal legislatures.
That means majority rules.
If a congregation seeking a building permit can persuade a majority of the municipal governing body, they can build. If those opposing that permit can win a majority to their point of view, the church cannot build. Instead of the rule of law, it is the rule of the majority. In a few states, such as Illinois and Wisconsin, though, churches are still partially protected by state judicial precedents.
This represents a radical shift in our society. Throughout the first half of this century, churches could build in both residential and commercial districts. Churches had to comply with regulations on setbacks, health and safety requirements, and building regulations, but they did not have to fight for the right to exist. They were permitted uses. The presumption was with churches.
In a growing number of municipalities today, however, the presumption is against churches. In some communities churches are a prohibited use. Others permit churches only in commercial districts. In many communities churches are defined as a special use and prohibited in all zoning districts unless the local governing body votes to permit that use. A few cities have created a church zoning classification, permitting churches only on sites zoned for that use.
Who defines the church?
Larger congregations and the gradual disappearance of small neighborhood churches have created a new environment for these decisions. In Greenwood Village, Colorado, the neighbors successfully fought the plans of a large regional congregation to build on a 35-acre site zoned for residential development.
One opponent declared, "This isn't a church! It's a big business. A church is where a group of neighbors gather to drink coffee and worship God." Subsequently that congregation purchased a shopping mall in the same municipality and now meets at a site earlier zoned for commercial use.
In California, in order to secure a building permit, a congregation agreed never to operate a weekday child-care facility on that property, succumbing to neighborhood opposition to traffic, noise, and crowding.
The definition of a worshiping community is now being negotiated in meetings of congregational leaders, attorneys, municipal officials, judges, neighbors, legislators, and other interested parties. Once upon a time people assumed the Bible, confessions, tradition, doctrine, and theology were the influential forces in defining the nature of a Christian church.
For Christians this may be the most crucial issue in the debate: Who has the authority to define the nature of the church? Caesar? God? The courts? The neighbors? Attorneys? Legislators? Theologians? Ministers? Planning commissions?
One of the most interesting facets of this issue can be described as egalitarianism. In the middle of the twentieth century, most victims in zoning battles were Jews, Catholics, Mormons, Seventh-Day Adventists, Jehovah's Witnesses, black churches, and sectarian groups. Only rarely did Baptists, Episcopalians, Presbyterians, Methodists, Congregationalists, and other white, "mainline" congregations encounter building permit barriers.
Today everyone is endangered!
Nimby (Not in my back yard!) has radically changed the criteria for selecting a church building site. For decades church leaders evaluated potential sites by the standards of size, accessibility, visibility, storm water drainage, topography, price, subsoil conditions, vegetation, elevation, and availability of utilities. But not any more.
Today the top three criteria often are (1) the attitude of neighbors, (2) local laws and precedents on land use for religious purposes, and (3) the capability to carry out the expensive and extended legal battle that may be required to secure a building permit.
An increasing number of municipalities restrict the size of any parcel of land that religious organizations may own. The typical restriction is twenty acres.
One reason to purchase a large parcel is to minimize objections from neighbors. One congregation, for example, has purchased two hundred acres with plans to develop two sides with single family homes. The church will sell these lots to members with the stipulation the rest of the church's parcel will be used for religious purposes including a Christian day school. That is one means of eliminating objections by the neighbors. A church could not follow this strategy, however, if their municipality limited them to twenty acres.
Potential megachurches clearly are the principal target of these ordinances. The basic rule of thumb is a congregation needs one acre of usable land for every one hundred people at worship. Acreage limitations indirectly limit the potential growth of a congregation.
While tax-exempt religious organizations are prohibited from endorsing candidates for political office, individual church members may want to get involved. The Smith case suggests that in the future the crucial decisions will be made by the legislative rather than the judicial arm of government.
If your congregation wants to relocate to a larger site, what do you do?
If you favor relocation, the most effective strategy may be to interrogate candidates for the city council. How do they feel about taking land off the tax roll for a church site? Do they believe churches should be permitted uses in residential districts? In commercial districts? Do they favor a limit on how much land any one congregation should be permitted to own?
Finally, who will pay the costs? A common scenario: A congregation purchases land, but when they seek zoning approval and/or a building permit, they find approval carries with it several conditions. A few may be acceptable, but one or two are not.
The church's attorney advises, "If you litigate this and are willing to appeal a loss in the lower courts, you have three chances out of four of winning your case. This may take four years and could cost a million dollars. What do you want to do? Live with the restrictions or litigate?"
There are tough choices to make. In many cases the restrictions limit what a congregation can do, prohibiting uses such as baseball, weekday child care, volleyball, picnics, outdoor rallies, parking, removing trees, a Christian day school, adult day care, and the sale of merchandise.
How many congregations can afford to spend four years in litigation? Who will define the nature, role, and permitted ministries of a worshiping community? Will Congress modify the Smith decision? Will the United States Supreme Court provide some relief?
The next five years may bring the decisions that shape United States churches for the twenty-first century.
- Lyle E. Schaller
Copyright © 1993 by the author or Christianity Today/Leadership Journal.
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