Church Zoning Increasingly Subject to Special Use Permits

Traditionally church zoning wasn't really up for discussion. Churches and other places of worship were allowed "as of right" under municipal zoning codes in residential districts. Thinking about the 1930s, when U.S. cities initiated zoning, many households walked to worship services, and it wasn't disruptive at all to have a place of worship in a residential district.

Increasingly, special use permits are required to obtain permission to build or add to a house of worship. The reasons are several:

1. Now, most congregants arrive by automobile, so traffic becomes an issue. And we aren't as homogeneous as a people, so in a typical neighborhood, residents are attending many different worship services or none at all during a week. So the traffic situation isn't isolated to a couple of hours per week.

So it's no longer true that a place of worship has no potential to be disruptive in a residential neighborhood. Sometimes church zoning becomes very controversial, once specifics are known.

Response to Changing Conditions

To deal with traffic and commotion, many municipalities have started to add stipulations to the still-prevalent practice of allowing church zoning in residential districts.

Most common among these would be requiring a special use permit or a conditional use permit.

Strictly speaking, a special use permit merely requires an additional level of scrutiny, namely a public hearing and recommendation from the planning commission, and then another public hearing and action by the city council or whatever your governing body is called. A conditional use permit requires these same procedures, but also spells out "conditions" that must be met at all times during the operation of the land use in question.

However, in practice, the two terms are often used interchangeably. Either allows public input and questioning as to actual scheduling and frequency of events, and also handling of traffic and parking arrangements.

Sometimes noise is a church zoning issue. Once in my professional practice, a particularly charismatic congregation wanted to obtain a church zoning designation mid-block in a residential neighborhood. The climate was a warm one, and the congregation was purchasing a long-deserted former church with no air conditioning. The line of questioning somehow veered over into the schedule, and the pastor allowed that usually the revival meetings were over by 10:00 p.m. or so on weeknights. That idea sent the neighborhood over the edge, and they fought tooth and nail against that special use permit.

One of us lives across the way from a church now, built back when church zoning wasn't such an issue. Now every Sunday morning involves risking life and limb to back out of one's own driveway as cars come bounding around the corner running late.

Another personal experience is that residents in a dense residential neighborhood adjacent to one of our churches complained about the outdoor Easter service at 6 a.m. I see their point.

So Why Not a Separate Church Zoning?

So those of you who are awake and alert are asking if church zoning can cause all these problems, why are churches and other places of worship allowed such latitude in most zoning ordinances?

The answer lies in a variety of court cases that have held that municipalities need to tread very lightly, lest they violate the U.S. Constitution's First Amendment guarantee of freedom of religion. In fact, some cases have held that congregations are virtually immune to the restrictions of municipal zoning. And that churches are perfectly appropriate in residential districts and cannot be banned. You might hear this referred to as the New York rule, because New York courts have been particularly insistent that even if places of worship are detrimental to traffic and property values, their presence contributes an offsetting positive to the public health, safety, and welfare. So therefore they cannot be prohibited.

In other words, the courts presume that places of worship should be accommodated, both because of First Amendment guarantees of freedom of religion, and because of equal protection under the law provisions of the 14th Amendment.

This second dimension, equal protection, means that a municipality is well advised to be extremely careful in turning down a mosque, synagogue, or other place of worship that represents a minority religion in the community. Even if the public input is very negative, elected officials need to be very certain to be objective if a minority religion is involved.

So in short, places of worship really have latitude. In one famous case, even sideyard setbacks could not be regulated.

Advice to Neighborhoods about Religious Land Uses

If you are facing a rezoning to permit a church, or a special or conditional use application, please be mindful of the legal risks to your municipality of denying the request. So therefore make your objections as reasonable as possible, based on fact and projection as much as possible. Avoid any hint of prejudice against the particular religious practices or beliefs, and indeed, don't be anti-religion at all. Just stick to the facts and the predicted traffic, and hope for the best.

Think strategically about this too. If the special use permit is granted, you are going to have a new neighboring institution whose cooperation you want. You also want a favorable impression from those who drive through your neighborhood to the new place of worship.

So in a net sense, most congregations are assets to their communities, especially if the neighborhood has been civil.

Advice to Congregations

From the congregation side, it doesn't make any sense to alienate the surrounding neighborhood. Do you want your cars vandalized while you are inside? The gas cap of my car was stolen while I was parked at church, and some dirt added to the gas tank. Yes, this could happen anywhere, but maybe the person was annoyed with the singing.

So while church zoning law is all on your side, think of the human relations aspect and do what you can to meet community objections.

A "Best Practice" Recommendation

In sum, it's best for municipalities to require a conditional use permit for every place of worship. Allow church zoning in a wide variety of zoning districts, however. Some will want highway zoning, some new congregations will find space in underutilized shopping centers to the good of the community, and some lower-income churches will be delighted in an inexpensive but grungy industrial space.

Control any bone-headed arrangements for traffic, parking, and noise and commotion through the conditional use permit, and allow places of worship in virtually any zoning district.

Make sure that the conditions could not be interpreted as discriminatory toward a particular religion.

If snake handling or goat sacrifice is involved, certainly attempt to think of a solution that will honor the sensibilities of others, but be careful not to phrase your "condition" in a manner that effectively prohibits the practice. Don't single out the snakes or goats. For example, your conditions might be:

• All animals at this location have to arrive and leave in cages, and must be confined within cages or the building or courtyard at all times.

• Animal sacrifices outdoors must be completely screened from view from adjacent properties.

But then, when a Christian congregation indicates they will have a donkey outside for a Christmas display or Palm Sunday re-enactment, treat everyone alike. If not, you may be violating the equal protection clause of the Constitution.

In downtown areas, or transit-oriented development or mixed-use zoning districts, attempt to negotiate with the congregation the features you need to make those particular areas work. When approached by a place of worship for a conditional use permit in one of these high-density or high-intensity zoning districts, talk with the congregational representative about making the building as versatile as possible.

If a congregation proposing to locate in one of these high-activity areas is receptive, help them expand their imagination about how they could program during hours that represent lulls for other uses. Sunday morning services are great for enhancing the principle of 24/7 activity, but congregations also might be help fill evening hours. They also can fill social needs within the community; many congregations already provide child care and preschools. Adult day care and evening teen recreation would be other good uses.

In a newer community or where new buildings are contemplated, promote multi-congregational use of the same building, just to keep the activity level steady. And to reduce the carbon footprint of building such spaces! Re-use of other buildings, including empty big box stores or strip centers, also is a great contribution a place of worship could make to their community.

In matters of church zoning, try for voluntary compliance with the spirit of the zoning district, and impose appropriate conditions. If sued, you could lose, so keep it friendly.

Communities that require architectural review for all construction and building conditions should be quite careful that any actions concerning a place of worship could not be seen by a judge as discriminatory toward the particular religion.

Most judges won't want to hear about the building mass being too grand for the neighborhood, steeple height being out of scale, the inappropriateness of a gold dome, and such. Again, try your negotiation and persuasion skills, but if talking it through is unsuccessful, you're likely to lose if you’re sued.

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