Tiny house village on church property

by Don
(Newport, OR, Lincoln)

Visitor Question: Is it legal to build a community of tiny houses for the homeless on church property if it is zoned r-1 (residential) and the property was initially issued a conditional use permit?

Editors Reply: This strikes us as absolutely not legal. Of course your local city and especially its attorney are the ultimate source of information on this point.

But I think our reasoning will be helpful to you. If a church exists in a residential zone not "as of right" (a phrase that means "you have the right to do this if you are in this zoning district, an no further zoning permission is necessary), but with a conditional use permit required, you need to obey the conditions set forth in the ordinance.

The conditional use permit isn't a suggestion, in our opinion, but instead it lists requirements that have the full force of municipal law. So unless their conditional use permit anticipated this very situation and explicitly permits this tiny house village, we think they would be in violation of their conditional use permit if they applied for a building permit for this purpose.

To add to the offensiveness of this situation, the tiny houses might well be at a greater density than otherwise would be permitted in the residential district if the church were not there. Or the houses might not meet a minimum square footage requirement for the residential district, and probably would not meet the minimum lot size requirements.

(In addition to zoning, this type of development might be in violation of your subdivision ordinance.)

Those are all the points in your favor if you are trying to fight this development.

Now we have to give you a bit of bad news about the many presumptions that are now made about religious land uses. In some jurisdictions, notably in the state of New York, courts are very sympathetic with religious congregations to the point of even holding that a zoning setback need not be met because that would be an infringement on religious freedom. But we don't know of such a stance in Oregon; that's why you need to check locally though.

In addition, the federal RLUIPA (the Religious Land Use and Institutionalized Persons Act) often is cited by those who think that this particular law means that a church can do anything it wants on its land. We don't think that is what is means. It's a relatively short law; you can read it for yourself.

But we think what this law really says is that religious congregations can't be treated more strictly than other non-profits, that cities can't treat one religion differently from another in terms of zoning, and can't permanently shut down the introduction of new congregations anywhere in the city.

We don't think there's anything in that law to imply that congregations can't be regulated.

So in our opinion, the only proper procedure for the church if they wish to pursue this type of project is to return to your planning commission and city council to request a modification of the conditional use permit, if that is even a remedy that is available to them under the zoning ordinance. There could be other provisions of the ordinance that would mean that's not even possible theoretically.

While we are all for inventive homelessness solutions, this type of project probably doesn't belong in an ordinary residential district.

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