Since it was signed into law by President Bill Clinton in 2000, the Religious Land Use and Institutionalized Persons Act (RLUIPA) has been a powerful weapon for churches stifled by restrictive zoning laws. Legal observers expect the U.S. Supreme Court will ultimately examine it, but until told otherwise, religious libertarians will champion the law.
RLUIPA forbids state and local governments from imposing a substantial burden on the exercise of religion unless they could demonstrate that imposition of such a burden is the least restrictive means of furthering a compelling governmental interest.
It replaced the Religious Freedom Restoration Act of 1993, which the Supreme Court struck down in 1997. The high court voted 6-3 that the U.S. Congress overstepped its authority to enforce the Fourteenth Amendment, which guarantees due process and equal protection under the law.
While RLUIPA has been used successfully by churches that either filed suit or threatened to do so, some experts maintain it doesn't have to come to that in many instances.
A Civil Case
Due diligence and a little mutual respect can go a long way in avoiding land-use disputes that pit church leaders against the very communities they seek to serve.
Lani L. Williams, associate council for the Washington, D.C.-based International Municipal Lawyers Association,
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"I think my answer would be the same for church leaders and for local government attorneys," Williams said. "The number one thing is to be civil. That seems like a real kindergarten thing to tell people, but they're much more likely to get to a result that everybody can live with, if they're all nice to each other."
Speaking from the perspective of the municipalities her organization represents, Williams said church leaders should be reasonable enough to look at the problem from the local government's or from a neighborhood's perspective.
"If you take a few minutes to get outside of your own box, you may come to realize that some of the things they have reservations about aren't really that unreasonable or that
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-- Lani Williams, |
I think you have to be civil to each other in order to come up with creative solutions that everybody can live with.
Williams recalled one case she consulted on in which a church wanted to tear down a building listed on a historic register because it needed space to grow. Local government was opposed. While there was haggling on both sides, the debate remained civil.
"The end result was, they moved the building to another location so they were able to preserve it and the church also got their bigger space," she said. "I think you have to be civil to each other in order to come up with creative solutions that everybody can live with."
Relying on Law
That is not to say all land-use disputes will turn out with the church coming out of the zoning board hearing satisfied, regardless of how civil the parties were or how big the church is.
In fact, say some who have been thwarted by zoning or planning boards, if a church is unable  or unwilling  to fight it out in court, it may be impossible to reach an acceptable solution.
In a case that is being closely watched from both sides of the planning table, Elsinor Christian Center sued the City of Lake Elsinor, Calif., claiming the city violated its religious freedom rights when it refused to grant a conditional use permit for a building in the downtown area. The church intended to purchase and use the building as a worship center, but zoning restrictions prohibited religious assemblies and worship there.
The case drew national attention in June 2003 when U.S. District Judge Stephen V. Wilson ruled the city indeed violated RLUIPA, but said the law was unconstitutional. The case is expected to be heard by the Ninth Circuit Court of Appeals and may end up before the Supreme Court depending upon the outcome of the constitutionality issue.
In Georgia, 2,500-member Divine Faith Ministries filed suit against county planners after the church was denied a special use permit to construct a facility in rural Clayton County large enough to accommodate its growing congregation.
"We actually are in our new building now, but not on that particular property," said Ann Taylor, human resources manager at the church. "We found a better location on the main highway in Jonesboro, so we're in a much better location, actually."
Seek Good Counsel
Divine Faith's experience illustrates why church leaders might be wise to consult outside experts before problems arise.
"What's happening today is more and more churches are facing a situation where they have property but they cannot build because the property was not zoned properly," said the Rev. John Joseph, a St. Petersburg, Fla.-based attorney, church consultant and ordained minister. "They purchased it, but it was not zoned for religious institutions.
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-- The Rev. John Joseph, |
Joseph said he often refers to a Chinese proverb that says, "If you are inside the frame, you can't see the picture." Church leaders frequently find themselves inside the frame when it comes to land issues.
"They don't see the big picture because, oftentimes, they are very emotional: ‘This is something we feel God wants us to do. This is something God has dropped in our lap,'" Joseph said. "What happens is they don't get that counsel; the due diligence isn't done properly to give them that objective analysis."
He said it is critical to invest in an attorney specializing in environmental, real estate or land-use issues who can analyze the situation and provide the church with a report of what they are facing.
"They can save themselves a major headache," he said.
Win Support
The Rev. Ardyth Johnson, pastor of Faith Community Church in Franklin, Wis., knows all too well the headache land-use disputes can bring on. Her 175-member congregation was put through the wringer when it attempted to buy a prized 22-acre lot to build on.
"The battle for that land became more acute to us as we proceeded to naïvely say that this is a beautiful spot for the church and the ministry," Johnson said.
When the church sought a zoning request in the fall of 2000 from the Franklin planning commission, it was turned away unanimously because of concerns about traffic, noise and tax-base issues.
Undaunted, Johnson and the church hired an attorney known in the region for championing religious liberty causes. Under his direction, the church campaigned for support on the city council and in the neighborhood.
"We did a lot of canvassing and a lot of PR," she said.
The 18-month ordeal culminated in July 2001 when the Franklin Common Council  made fully aware of RLUIPA by that time  overruled the planning commission and voted in favor of the church.
The grassroots efforts of the church are just the type of action Joseph said churches should employ well before land-use issues crop up.
"I recommend that if you have a piece of property that you are going to end up building on  and a lot of churches are in residential neighborhoods  I suggest every Thanksgiving you buy 30 extra turkeys, get the fixings and go to every house around your church and bless that family," he said.
That simple act of good will can go a long way when neighbors are asked by zoning or planning boards whether they are opposed to building projects proposed by the church.
"They will listen very intently to local neighbors," he said. "If you have laid the seed of support, you will have families that will lean toward blessing the church. Why? Because they have shown love to their neighbors and they have blessed them. That's not manipulation. I dare say, even if you never build, if you go around and meet your neighbors, I think that is a godly thing to do."
Pray, Pray, Pray
Another godly thing to do, said Faith Community's Johnson, is to pray.
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-- The Rev. Ardyth Johnson, |
"I think the most important thing is to go into the discernment ministry in prayer and ask the question, ‘Lord, is this where you want your church built?'" she said.
While she said church leaders should be aware of RLUIPA and use the law when necessary, they can sometimes avoid unnecessary litigation  and ill will among the community  if they first prayerfully seek an understanding of God's will for their church.
"You need to be absolutely convinced that's what God wants. And then, by fire, storm and flood you go forward," she said. "I think it is naïve today for pastors to assume the church is as welcome as it once was. We just have to face that. There's no magic formula here other than hard work and lots of faith."
