Churches Don't Have a Free Pass in Zoning

"The rights of conscience we never submitted, we could not submit.  We are answerable for them to our God. 

The legitimate powers of government extend to such acts only as [they] are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god."

Thomas Jefferson, Notes on the State of Virginia, in Jefferson, Writings, 285-286 (The Library of America, 1984).

Land use, usually a topic eliciting yawns, becomes a gripping topic when it finds itself at the intersection of freedom of speech, smart growth and environmental protection. That happens when the proposed use is religious and opinions have been strong ever since Jefferson.

Pristine landscapes of northern Baltimore County. Challenged by
mega-churches? (Photo: Valley Planning Council)

In the US, where religious rights free speech rights and property rights are especially strong, places of worship got an additional layer of protection with what is known as the Religious Land Use and Institutionalized Persons Act or RLUIPA of 2000 which

"protects the ability of religious institutions to freely carry out their missions and allow their members to exercise their religious beliefs through the construction and use of property for religious purposes. Section 2(a) of RLUIPA bars zoning restrictions that impose a “substantial burden” on religious exercise, unless the government can show that it has a “compelling interest” for imposing the restriction and that it is the least restrictive way for the government to further that interest. This provision can apply to individuals holding prayer meetings in their homes, as well as to institutions, such as churches, mosques, synagogues, temples, religious schools, and faith-based charities." (DOJ, 2016 update). 

Willow Creek Church Illinois: A parking lot like a mall

Hate crimes in 2017 illuminate what RLUIPA  had in mind when it was enacted in 2000. The clear purpose was not do give churches a free pass on zoning but to prevent zoning as a tool of discrimination based on religion and belief.

One just has to remember that zoning, invented as a tool of segregation of uses, was early on adapted to include segregation of race, class and religion. While use segregation was originally based on the public interest matters of health, safety and welfare, segregation on a much more nefarious base was initiated in Baltimore early on. The New York Times writing in 2015 about segregated Baltimore laid out what happened:

The segregationist effort in Baltimore gained momentum in 1910, shortly after a Yale-educated black lawyer bought a house in the well-heeled Mount Royal section of the city. The uproar among whites led to an ordinance that partitioned the city into black blocks and white blocks: No black person could occupy a home on a block where more than half the people were white; no white person could move into a block where more than half the residents were black. In 1910, The New York Times described this as “the most pronounced ‘Jim Crow’ measure on record.”

California mega -church designed by Philip Johnson

RLUIPA was an effort to protect religious minorities from being zoned out of communities based on their specific religious belief in specific circumstances.

"RLUIPA is limited to situations where Congress can act within the scope of its power to regulate the recipients of federal funding, under its power to regulate interstate commerce, or consistent with the U.S. Supreme Court's Smith and Lukumi cases, the regulation involves an individualized assessment and therefore is not a law of general applicability." (Jenkins and Bowen)

RLUIPA was intended to avoid religious discrimination cloaked in general (zoning) rules. For example, a zoning ordinance that prohibited churches in zoning districts where private clubs and lodges were allowed would violate the equal terms provision. While this seems obvious, the number of violation claims has steadily gone up, although there are disputes whether there is a preponderance of cases where minority religions are affected or whether cases are quite evenly distributed. At any rate, the Department of Justice saw the need for a December 2016 letter reminding the public of RLUIPA. The letter also clarifies that zoning can still limit what churches can do:

....this does not mean that a zoning ordinance places a substantial burden just because it limits churches to certain zoning classifications. Similarly, the Eleventh Circuit has held that requiring a religious institution to apply for a special use permit does not constitute a substantial burden. Therefore, although the issue of what does and what does not constitute a substantial burden has not yet fully been fleshed out, it appears that more is required than simply subjecting a religious institution to land use regulation. [...] Zoning ordinances must be neutral on their face, and neutral in their application.  Second, if the local government wishes to regulate a religious use by its religious nature, it very likely will face strict scrutiny, especially if the ordinance is not neutral on its face.(Jenkins and Bowen)

In short, RLUIPA does not exempt churches from zoning as long as zoning is defined and applied equally for all. Zoning can restrict certain uses based on non religious criteria and those apply to religious uses as well. A very large assembly hall could be forbidden because of height, lot coverage or other religiously neutral criteria that would apply to any type of assembly, religious or not.

Federick, MD: Traditional concept of "church"
in the community  (Photo: Philipsen)

This insight is especially important when it comes to what is commonly known as "mega-churches", a land use that includes large places of worship often combined with amenities and large parking facilities that have become an increasingly common manifestation of the traditional image of a "church" as a building with a steeple in the heart of a community. Because those "mega church" configurations are extensive and their demand on available space can be enormous, those applications are often made for undeveloped land on the outskirts of cities and even suburbs in areas that may be protected from development by zoning for environmental protection or growth management.

It is for this reason that development proposals for mega churches frequently run into a buzz-saw of zoning laws and environmental regulations and that RLUIPA is invoked by them as well and not only by minority religions.

Because the so called mega church developments frequently include secular facilities in addition to (a large) place of worship such as daycare centers, classrooms, gymnasiums, performance spaces and the like, applying standard zoning controls that manage such facilities should be no problem and not constitute the hurdle of "substantial burden" .

This sounds simple enough. But the reality with which zoning officers are confronted is often enough fraught with peril with varying definitions in the context of the First Amendment. Does the construction of an 8000 person assembly hall with  parking spaces, a daycare center and a host of support structures should even fall under RLUIPA, in part or in its entirety? What if a congreagation argues that the size and the amenities are core elements of their right to exercise worship? Is the matter different if the development is proposed in a resource conservation zone?  When does an environmental development restriction impose a “substantial burden” on religious exercise? Can the local government show a “compelling interest” for imposing the restriction and is the development restriction on the books the least restrictive way for the government to further that interest? Often times these question wind up in court and in a series of appeals.

Baltimore County is no stranger to these cases. 50 years ago the County installed a growth demarcation line and has managed to keep large stretches outside the development envelope in pristine shape thanks to very restrictive zoning allowing only one dwelling unit for every 50 acres.

A current case is  the Hunt Valley Baptist Church which lost in the initial rounds of review and appeal but recently filed a lawsuit against the county's zoning appeals board in federal district court. In a 2016 ruling the zoning appeals board denied permission to build a 1,000-seat sanctuary, classrooms and gym on a 17-acre farm just west of Interstate 83. The church's plans would place the new facility on the rural side of the urban-rural demarcation line locally known as "the URDL". The community represented by the well heeled Valleys Planning Council was jubilant.

The Baltimore County Board of Appeals decided last week to overturn the special exception regarding the Hunt Valley Baptist Church on Shawan Road. This is a huge victory for the community who worked tirelessly with VPC to oppose the proposed 30,000 square foot mage church on the RC 4 (Resource Conservation/Watershed Protection) zoned property.  We are grateful to our members and friends who provided financial support, attended hearings, testified and/or helped to successfully fight this large scale institutional use in the rural area. Congratulations! This scenic property is saved! Next, we need to convince the councilman [..] not to change the zoning. (Valley Planning Council News, 2016)

Now the battle continues. According to the Baltimore SUN, the church's attorney invoked the US Constitution: "Equal treatment of all religious institutions is a cornerstone of our constitutional traditions. We are confident that the protections of religious exercise that exist under federal and state law will allow Hunt Valley Baptist Church to minister to its members and the community at large in the manner that they believe is necessary."

A previous Baltimore County case involving a 3000 seat mega-church was resolved by the County buying a 258 acre parcel from the church. It had been proposed for the church project and was then preserved as public open space. Neighbors and the church had fought over the property in zoning hearings and courts for years.This land was also located in what is called a resource conservation zone. County Executive Kevin Kamenetz said at the time: "From an environmental perspective, this parcel is particularly beneficial to preserve as open space due to its large size and varied terrain featuring steep slopes, forest and streams," 

This is an epidemic across the country — these large complexes that identify as a church but are these large structures with gyms and basketball courts, our zoning has to adapt to this new phenomenon." E. Buxton, Director VPC

In Frederick County, a decision of the planning commission to deny a mega church in an environmentally sensitive area was first confirmed by the Frederick County Board of Zoning Appeals. Global Mission Church, wanted to clear forest and farmland for a 140,000 sqft complex at the base of locally famous Sugarloaf Mountain. The megachurch complex would have been built on well and septic; local residents and professionals alike have expressed concern that this development would greatly impact the area’s wetlands, a creek and an important aquifer. The church then scaled back the size of the structure to work within the 5,000 gallon per day septic capacity. With the size of their buildings and congregation reduced, the planning commission approved the project in a subsequent hearing. When that decision was appealed, the Board of Zoning Appeals stated that it didn't have authority to review the approval which was based on criteria of the health department regarding sewage. The Maryland Court of Appeals (the state's highest court) sided with the Board of Zoning Appeals. Construction of the reduced church project is now moving forward.

On October 3, 2011, the U.S. Supreme Court declined to hear the City of San Leandro’s appeal of the Ninth Circuit Court of Appeal’s decision in favor of Faith Fellowship Foursquare Church, a 2,000-member church that sought to open a new church in an industrial zone. That case shows that local zoning needs to be careful with zoning amendments that are made in response to a specific project. The case was complicated by the timing of the applications and the jurisdiction deliberating on an overlay zone at the same time. The matter remains in the lower courts for claim of damages that the church filed after abandoning the project. 

Austin church amphitheatre 

Supreme Court decisions show us that land use laws that burden religious exercise, like other laws, must be neutral and of general applicability in order to avoid strict scrutiny.  Of course, there appears to be significant room to argue whether a law is neutral and of general applicability, and in many cases that will likely come down to a factual, rather than a facial, determination. (B.L. Bowen, Esq)

How far religious land use can stray from traditional land use and construction shows the LifeAustin church and the strife between the church and neighbors. About 2,000 people worship at the church on Sundays. The church, completed in October 2012, built the 1,580 person capacity amphitheater on its 53-acre private property for people who might be reluctant to enter a traditional church but would be willing to come to an outdoor center. The property is zoned for residential use, and one of the allowed uses is religious assembly. Appeals against the structure came before the Austin Board of Appeals which postponed decisions last year in hope that church and neighbors can find common ground. A church member said, according to the local Community Impact paper:

“I realize that it can seem a little bit unconventional to have an amphitheater as part of a church worship service … but it really shouldn’t, “Jesus did some of his best work outside.”

The matter remains open.


Klaus Philipsen, FAIA

Baltimore SUN about federal lawsuit against Baltimore County zoning rule
Baltimore SUN Baltimore County appeals board halts plan for Hunt Valley church
Zoning for Churches
Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)



My book, Baltimore: Reinventing an Industrial Legacy City is my take on the post industrial American city and Baltimore after the unrest. 
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