Pastor Jim could hardly believe his ears. Faith Community Church hoped to start a congregation in the neighboring suburb of Williamstown, but the city’s planning committee was stunningly candid during a courtesy review of the church’s proposal.
The aldermen, in a public meeting, unambiguously said, “Our long-term development plans for the proposed site do not include a church. We want this prime piece of real estate to be developed commercially to generate tax revenue.” The city was not going to let a church jeopardize that goal.
Williamstown’s aldermen (names of the pastor, church, and city have been changed) had the local law on their side. The property Faith sought had been zoned for nonreligious assembly only—a theater or union hall could occupy the site, according to local ordinance, but a church could not build on the site without a special-use permit by the city—something the aldermen said they had no intention of granting.
So Faith Community Church took Williamstown at its word, and before the city could prevent the church from developing the property, the church filed suit in federal court accusing the city of violating the Religious Land Use and Institutionalized Persons Act (RLUIPA).
The preemptive legal action was the advice of John Mauck, an attorney who helped craft RLUIPA, the law signed by President Bill Clinton in 2000, ensuring cities could not use zoning codes to discriminate against religious institutions. Mauck believed the law clearly applied to Williamstown, but if Faith Community didn’t act quickly, the city could change the zoning to deny both religious and nonreligious assembly on the property. Then the church would have no basis for appeal to RLUIPA.
Faith Community’s decision to file the suit was not easy. Few churches plan on legal action as anything but a last resort. But with more churches clashing with city governments over building projects, lawsuits have become more common and, some would argue, more necessary.
Still, the decision is fraught with political and theological complexity. It doesn’t guarantee success, even when the law seems to be on the side of churches. And what does a suit do to the relationship between the church and the new neighbors it’s called to love?
The case of Faith Community Church illustrates the risk and reward when church challenges state.
Appealing to Caesar
While contemplating the lawsuit, leaders at Faith Community sought guidance from the Bible. They wanted to know, is a lawsuit unbiblical?
Trends suggest more churches will need to decide whether to fight or to flee city hall.
They considered the apostle Paul’s use of Roman law in the book of Acts. When an earthquake freed Paul from prison in Philippi, he refused to leave in peace. “[The magistrates] beat us publicly, without a trial, even though we are Roman citizens, and threw us into prison. And now they want to get rid of us quietly? No! Let them come themselves and escort us out” (Acts 16:37). The magistrates, who had broken Roman law, came and apologized to Paul.
In Acts 22, the apostle avoided a beating because he preemptively warned a centurion of his Roman citizenship.
Paul also leveraged the law for gospel purposes in Acts 25 by appealing to Caesar. He did not take the bait dangled by Festus, who wanted to please the Jews by sending Paul back to Jerusalem. Paul told the governor, “I am now standing before Caesar’s court, where I ought to be tried. I have not done anything wrong to the Jews, as you yourself know very well. If, however, I am guilty of doing anything deserving death, I do not refuse to die. But if the charges brought against me by these Jews are not true, no one has the right to hand me over to them. I appeal to Caesar!” (Acts 25:10-11).
Paul could have settled things quietly, but he appealed his case to Caesar, and Paul’s knowledge and use of the Roman legal system accomplished his purposes and enabled him to reach Rome and build this crucial church.
Yet Paul’s words are often invoked by Christians who don’t believe churches should sue: “If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints?” (1 Cor. 6:1). Mauck points out that Paul’s prohibition concerns believers suing believers, not believers suing the government.
“Paul said to submit to the powers, which are ordained by God,” Mauck says, referring to Romans 13:1. “Under our legal system, the highest law of the land is not a mayor. It is the Constitution of the United States. That’s what we submit to. The system provides protection for believers, and we use the courts to do so.”
Risky business
Theology, however, wasn’t the primary stumbling block for Faith Community Church’s members, who still needed to approve the property purchase and accompanying debt. The church’s biggest financial giver invited Pastor Jim to his house and explained his concern. He said the church would be violating typical business etiquette by taking the conflict public in a lawsuit.
“That’s just not the way you do business,” he told Pastor Jim.
Church politics was another factor. A number of members never really understood why Faith Community wanted to start a new congregation in the neighboring suburb. The lawsuit became a referendum on the previously approved goal of launching a church plant.
Pastor Jim said that his church first considered launching a new site in Williamstown because it was deemed to be an underchurched community and Faith Community, just seven miles from Williamstown, saw an opportunity to go and make disciples. Other congregations in town welcomed the notion when Jim talked with them about a Faith Community Church plant.
There was also an internal motivation for pursuing a new congregation at the time. Pastor Jim reported that Faith Community Church was just emerging from a series of internal conflicts stretching over two years. Jim believed the church needed a new vision that would take their minds off themselves and the conflict. He believed the challenge of establishing a new congregation would bring healing by directing their gaze toward the future.
After much prayer and discussion, church leaders and members voted to buy the property and proceed with the lawsuit. “It seemed the wisest course of action,” said Pastor Jim. He worried that buying the land and not suing would be an irresponsible risk for the church. What church can afford to drop $1 million for the property and not be able to use it? Nor could Faith Community Church afford a protracted fight after purchasing the property.
Three weeks after Faith Community Church filed the lawsuit, the city’s attorney called. Williamstown was willing to cooperate, he said. The city would zone the property to allow religious assembly in order to comply with RLUIPA.
Just like that, the legal issue was settled. Faith Community Church dropped the lawsuit. And today Faith Community’s church plant is meeting and growing in Williamstown.
Talking peace, preparing for war
Not every church waging a legal battle with their city government gets a happy ending. One of Mauck’s other clients tells a cautionary tale. City leaders encouraged “First Church” to present the most ambitious plan they could imagine for utilizing their property. The church never really planned to build as many square feet as they reported, but they accepted the city’s invitation and submitted their grandest vision.
It was this plan for conspicuous development that the city seized upon to later reject the First Church application.
“Cities may talk peace while they prepare for war,” Mauck said.
A federal judge rejected First Church’s subsequent lawsuit. Adding insult to injury, the church split during its tense fight with the city. The departing faction never supported the church’s lawsuit and aggressive public posturing.
Unfortunately, trends suggest more churches will need to decide whether to fight or flee city hall. Legal battles break out as governments awkwardly weigh America’s religious history against recent interpretations of its laws.
In this sense, zoning is similar to fights over school prayer, nativity scenes, Decalogue displays, and the Pledge of Allegiance. An increasingly post-Christian society does not automatically respect or value churches. Municipal leaders may even believe there are already too many churches in town.
While many have noted a heightened spiritual interest in North America, even this can work against churches. The same laws must accommodate Muslim mosques and Hindu temples, which are not always welcome in the “not in my backyard” climate of public hearings. Residents fear declining property values as well as “outsiders” moving in.
“What about the traffic?” they ask. Sometimes what they really mean is, “We don’t want your kind around here.” Mauck has observed that majority-white communities often don’t treat churches comprised of racial minorities fairly. The same goes for Pentecostal and other fast-growing churches expanding in cities where the leaders attend established Roman Catholic and mainline churches. Politicians may not be sensitive to churches that want to accommodate shifting demographics or reach overlooked subgroups.
Megachurches complicate the situation further. Their specter hangs over every public deliberation. No one, it seems, wants to live near the next sprawling facility and its expansive parking lots. And every church has just that potential, according to concerned residents whose faith in the church’s ability to attract people would be admirable if it weren’t rooted in paranoid self-interest.
Then there’s the ever-present bottom line. Churches that cause too much traffic in residential zones don’t attract enough traffic to the commercial zones. Or at least not the right kind of traffic—the tax-paying kind. Cities across the country are coping with the rising costs of obligations such as emergency management and education. Meanwhile, property taxes generate less revenue due to the recent wave of foreclosures. And churches are exempt from property tax. Some churches make cash gifts to local governments to pay for services provided. This investment seeks a long-range return of good will, but risks creating a “pay to play” culture for churches seeking zoning variances in the future.
It is crucial to remember that churches are not the only victims of this crunch. Even colleges, hospitals, and other non-profits that generate jobs come under scrutiny because they don’t collect sales taxes. This takes some of the edge off the culture-war mentality.
Despite the passage of RLUIPA eight years ago, there are still no guarantees that a church will find favor in court. There have been about 200 RLUIPA-related decisions in lower courts since 2001, but the Supreme Court has thus far declined to review the law and set clear guidelines for its application.
Currently, application roughly mirrors voting patterns, says Mauck. Southern states with a high percentage of church attendance have typically interpreted RLUIPA to favor churches. States in the Mountain West and Midwest that alternate between red and blue have alternately sided with churches and cities. Churches in the Northeast and along the Pacific Coast have struggled to make their case before city councils and federal courts.
Given these factors, how can a church avoid zoning battles and stay out of court? Mauck says churches usually have three criteria in mind when evaluating potential property: visibility, accessibility, and affordability. But any business uses these same criteria, and businesses expand the tax base. For easier approval, Mauck recommends that churches consider transitional zones, especially those between residential and commercial districts. Local government may also look more favorably on churches building on unincorporated land between suburbs. If it helps a church stay out of court, these alternatives become much more appealing, even if the church must sacrifice visibility or accessibility.
“It’s not just a question of law, and it’s not just a question of winning,” Mauck said. “If you win in court but antagonize the community in the process, it can take a long time for the church to make an impact in terms of the gospel.”
Plaintiff’s remorse?
Despite its legal success, Faith Community Church still had problems. The politicians were furious and embarrassed. When the local media caught wind of the church’s lawsuit against the city, it made Williamstown look discriminatory. City leaders said they did not realize Williamstown’s outdated zoning codes were in violation of newer federal laws. And as soon as they did, they were happy to comply.
Then the mayor called Pastor Jim. “Why didn’t you just work with us?” he asked. “Surely we could have reached a deal without the lawsuit.”
Pastor Jim didn’t tell the mayor why Faith Community Church filed the lawsuit. He didn’t mention that fateful meeting when city leaders made clear a church didn’t fit their plans because it wouldn’t help the bottom line. He didn’t admit that he still wonders if Faith Community Church did the right thing. What if he had called the mayor and given the city 24 hours to comply with RLUIPA before filing the lawsuit? The church’s legal counsel advised that such a warning would only tip off the city to their strategy and allow them to zone out all non-profits to thwart the church’s expansion. Too many cities have taken advantage of a church’s naivete. But maybe Williamstown would have been different. Maybe the church could have spared hard feelings …
Three years later, Faith Community’s new site in Williamstown is still under development. Some church leaders wonder if hard feelings slowed the pace of development. City officials didn’t always approve the necessary permits quickly. But Pastor Jim has nothing but wonderful things to say about the city staff: “Individual city employees have been wonderful in giving us information that has helped us avert a number of potential crises.”
When the building is complete, Pastor Jim still plans to publicly thank all the city officials who went out of their way to help Faith Community Church join the Williamstown community.
Collin Hansen is an editor at large for Christianity Today.
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