Church and Law: Zoned Out

Across the country, churches are being pushed out or tied down by land-use restrictions.

There was a time, not too long ago, when a church steeple marked the heart of many communities. Rising above houses and trees, it provided the architectural high point of the neighborhood, a reference point for society.

Not anymore. Nowadays, a steeple is just as likely to be ruled out of compliance with city building codes. There are other signs of post-Christian times, but perhaps none is as telling—and tangible—as the struggle to ensure that church buildings remain a functioning part of America’s municipal landscape. Across the U.S., churches are being kept out of neighborhoods or shackled in their ministries by zoning restrictions—and they are fighting back.

“In the middle of this century, the most common victims of emotional responses to the religious use of land were Jewish congregations, Mormons, and Jehovah’s Witnesses,” writes church-growth expert Lyle Schaller in The Lutheran magazine. “Today the construction plans of Lutherans, Baptists, Roman Catholics, Methodists, Presbyterians, and other old-line religious bodies are being rejected or postponed by opponents who object: ‘Not in my back yard!’ ”

Situations vary. Many new churches that want to build find there is simply no space allotted for them in carefully planned subdivisions. In other cases, churches that existed long before the advent of modern zoning regulations, which became widespread during the post-World War II building surge, want to add on or remodel, but can’t. Limits on building size, lot size, steeple height, traffic flow, parking space—all can snag churches’ plans. Some find their destinies controlled by disgruntled neighbors who worry that a church will proselytize locals or draw “the wrong crowd.”

Such problems and complaints pose a difficult question for churches, Schaller says. “Should churches be ‘good neighbors’ and accept what probably are unconstitutional restrictions and forced compromises? Or should they take the issue to court?”

Increasingly, churches are opting for courtrooms. John Whitehead, president of the Rutherford Institute, a Virginia-based legal firm that specializes in religious-liberty cases, says his group is handling more zoning disputes than ever.

Examples of zoning conflicts abound:

• In California, an ecumenical group has organized to battle that state’s 1971 zoning laws, which opponents say provide space for everything but churches.

• In Dallas, congregations have banded together to fight the city’s zoning standards, which they say prevent churches from starting schools.

• The Assemblies of God in 1989 called on zoning boards nationwide to stop discriminating against its churches when they try to buy land and get building permits.

• In Quakertown, Pennsylvania, Upper Bucks Community Christian Fellowship successfully challenged a judge’s ruling that it had to close a homeless shelter on the second floor of its downtown building.

• In Trenton, New Jersey, the Salvation Army lost an appeal against a state ruling that Army shelters had to meet commercial boarding-home standards.

• Other churches have run afoul of city landmark commissions. In Boston, a Catholic church fought a long legal battle before eventually winning the right to restore its church. And in New York City, Saint Bartholomew’s Episcopal Church was prevented from renovating to add social-service ministries because its building is a historic landmark.

Land Planning

In Southern California, laws ensure zoning for parks, residences, businesses, industries—just about everything except churches, says real-estate broker Bruce Young. So Young decided to fight the state’s 1971 laws for master-planned communities by forming Land Advocacy for Nonprofit Development (LAND), a special project of the Southern California Ecumenical Council.

According to Young, since 1971 state zoning laws have prevented construction of about 80 percent of the religious facilities that would have normally been developed, LAND notes that among those master-planned communities already completed, there is an average of only one religious facility for every 10,000 people. The national average is one for 830 people. LAND blames adverse land planning for an estimated 40 percent drop in church membership among people living in planned communities. “Without religious facilities, people stop attending religious services,” Young says.

Churches end up having to build far away from the communities where they wish to minister. Many have to rent, which inhibits their ability to sink roots into the community. “Can you imagine … if our religious congregations would have rented their facilities for a period of 215 years?” Young asks.

Ultimately, LAND is pushing for the state’s master-planned communities to change zoning standards to set aside 1.4 acres per 1,000 people for religious facilities. So far, at least one city, Chula Vista, has agreed to follow the standard.

My Back Yard

The zoning problems facing most churches have to do with obstinate zoning boards or upset neighbors. Both groups may offer complaints that are not related to the church itself, but rather to its programs or activities.

For example, a church’s shelter for the homeless might attract vagrants, or expansion might create traffic congestion. Church-growth expert Schaller says it is the “NIMBY” (not in my back yard) syndrome. “The NIMBY syndrome tempts planning commissions and city councils to ‘pass the buck’ by letting the courts decide the issue,” he says.

One church that decided to stand up and fight was Gospel Lighthouse Church, an independent charismatic congregation. About 50 years old, the church moved 16 years ago to 36 acres in the rolling hills west of Dallas. As the city grew out once again to encompass the church, worship attendance grew to about 1,200. The church added a day school, which enrolls about 215 children, and now wants to add a complete high school.

But the city says it cannot, citing an old zoning law saying any church wishing to add on a school must get a special-use permit. In effect, the law says that running a school is not a legitimate function for a church. Getting a special-use permit would mean years of legal work, time, and money. The new facility is needed next year, says school principal Mary Campbell.

“There is a state law that says you can’t treat private schools any differently than public schools, and public schools don’t have to [have special-use permits],” she says.

The church has challenged the city, noting that several smaller churches without the means to file such a challenge had already been dealt setbacks due to the city’s codes. Realizing what is at stake, about 50 other churches have joined Gospel Lighthouse, calling themselves Concerned Citizens for Church and Parochial Schools. The group attracted local attention, and the Rutherford Institute came to their defense.

“We are currently negotiating with the city to try to get the zoning changed,” Campbell says, adding that the group’s real goal is to build understanding between city officials and churches.

In other cases, large numbers of residents often rally against church plans. For instance, Elizabeth Baptist Church’s estimated 3,000 worshipers won the right this past July to relocate two miles outside Atlanta. But the church faced opposition from nearby residents who argued that the church would create traffic problems and lower land values in the area.

Are churches making sound decisions by going to court? Schaller, for one, thinks so. “Every church that submits to an unconstitutional compromise to save time and money creates one more local precedent for arbitrary, unreasonable, and capricious decision making,” he says.

To date the U.S. Supreme Court has not ruled on a case strictly involving church zoning. Neither have most federal courts, which means that any guidance must come largely from decisions at the state level. And if current trends hold, churches can expect to face a continued battle to keep the steeple among the people.

By Joe Maxwell.

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