Church Zoning Increasingly Subject to Special Use Permits

Traditionally church zoning wasn't an issue. Places of worship were allowed "as of right" under municipal zoning codes in residential districts.

Thinking about the 1930s, when many 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.

A few zealous municipalities created a zoning category called institutional, and placed that designation on churches, schools, and government buildings.

Increasingly, special use permits are required to obtain permission to build or expand a house of worship, for several reasons:

1. Now, most attendees arrive by automobile, so traffic is an issue. We aren't religiously homogeneous as a people, so in a typical community, churches, synagogues, and mosques are holding services at many different times during the week. So the traffic situation isn't isolated to a couple of hours per week.





2. Not only are we more diverse, but also the congregations are taking on more and more roles. Many sponsor day care centers, parents day out programs, senior citizen activities, youth recreation, social services, and many other activities at all times of the day and week. Almost everyone comes and goes by automobile.

So it's no longer true that a place of worship can't disrupt a residential neighborhood. Sometimes church zoning becomes very controversial, once specifics are known.

Some controversies about places of worship will be based on the particular faith that proposes to build. If it's a minority faith in the community, you could be faced with a major dispute that will have nothing to do with land use.


Special Use or Conditional Use Permit Requirement

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 your own driveway as cars round 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 by now you 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 court decisions that add up to the fact that municipalities need to tread very lightly, lest they violate the U.S. Constitution's First Amendment guarantee of freedom of religion.

Some courts 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 offsetting benefits 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.

As if this strong case law precedent weren't enough, in July, 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (called RLUIPA), which said that there shouldn't be any law that's burdensome to a religious organization unless there is a compelling government interest and unless the proposed law is the least burdensome way of furthering that compelling interest.

RLUIPA has led to numerous further court cases, many of which have reinfored the flexibility that religious organizations have when it comes to local land use law and church zoning.


Advice to Neighborhoods About Religious Land Uses

If you are facing an unwanted 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. Make your objections as reasonable as possible, based on fact and projection as much as possible.

Make sure all your speakers avoid any hint of prejudice against the particular religious practices or beliefs, and don't be anti-religion. Stick to predicted traffic or other measureable impacts appropriate for zoning discussions, and hope for the best.

Think strategically too. If the special use permit is granted, you are going to have a new neighboring institution whose cooperation you want. You also want people who drive through your neighborhood to the new place of worship to react favorably.

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


Land Use Zoning Advice for 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 vandal 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. It's also just neighborly to meet zoning requirements such as the minimum required setback from the property line, even if a court might hold that you wouldn't have to.


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 advance of a shopping center renovation to the good of the community, and some lower-income churches will be delighted in an inexpensive but grungy industrial space.

Control any impractical 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, transit-oriented development, or mixed-use zoning districts, attempt to negotiate with the congregation the features you need to make those particular areas work.

You might think we're strange to talk about places of worship in MXD or TOD, but we think that's a great idea, especially in the slow commercial market. In fact, you could think of flexible space that would accommodate more than one congregation.

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 highly versatile.

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!

Adaptive 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 is unsuccessful, you're likely to lose if you're sued because you deny some church zoning matter.


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