Federal law 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.

Richard Hammar, 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.

“RLUIPA 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.

“A city 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 dollars-and-cents calculation.”

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.

“But a 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.

Hammar says he empathizes with homeowners concerned about a megachurch locating across the street.

“It must 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.”

Cottonwood Christian 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.

“It’s 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.

“We have 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.

Hammar hopes 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.