WHEN YOU’RE IN the initial stages of planting a new church, finances tend to be tight. In the beginning most congregations don’t have a huge building fund available to purchase land or a new facility. As a result, many churches start by renting property to keep costs within budget.
When a congregation does have enough funds to construct a new facility, finding an ideal location tends to become a challenge. An ideal location would be one that’s relatively central to the community, in an area with adequate parking, and easy to access from a main road or interstate. These criteria often lead a congregation to consider commercial districts as prime real estate.
Unfortunately, religious assemblies have been denied permits from local city councils to even rent, much less buy, properties within commercial districts. At times, the ordinances city councils cite when they deny permits discriminate against religious assemblies while granting secular assemblies (such as movie theaters) necessary permits.
And while a single ordinance may not blatantly discriminate against religious assemblies, the combination of multiple ordinances can result in the same impact. Therefore, if your church is searching for property, or plans to, it’s crucial to know your rights before you seek required permits.
GROWING CHURCH SEEKS A SECOND CAMPUS
Riverside Church in Big Lake, Minnesota faced a challenging situation as they sought to expand into a second campus in the neighboring town of St. Michael. Leadership of the growing congregation found an ideal facility, an abandoned movie theater in excellent condition just off a major interstate in an area that would reduce the driving distance for many of the church’s members. Unfortunately, they ran into a zoning ordinance that required houses of worship within the city of St. Michael to be built in residential areas only. The city allowed “assembly” for a theater, but not for a church.
During negotiations to amend the zoning ordinance, the city council included language that Riverside Church would “waive its right to claim,” and thus the agreement violated basic rights provided in the US Constitution, as well as the Religious Land Use and Institutionalized Persons Act (RLUIPA), or any other statute or legal principle. In other words, the city council wanted to include several conditions on the church’s usage of the property while also removing the church’s ability to seek legal remedy if it felt the city council was violating its rights at any point.
Church leadership rejected that agreement and subsequently sued the city based on its understanding that the city violated RLUIPA as well as the church’s free speech rights under the First Amendment of US Constitution.
Riverside Church won the case and was awarded $1.3 million, plus legal costs. While the judgment was too late for Riverside Church to purchase their ideal facility, Executive Pastor Skipp Machmer notes that other churches have since been able to cite the Riverside Church vs. the city of St. Michael legal case, and apply lessons learned from this case to obtain needed zoning approvals.
Machmer explains, “We didn’t take legal action to get money from the city. We did this because this is a case of the government telling a church what it can or cannot do in violation of the US Constitution.”
Riverside Church continues to look for another location in the St. Michael area, so they can better serve that community.
RELIGIOUS OUTREACH CENTER DENIED RENTAL SPACE
In Cooper City, Florida, a Chabad Outreach Center sought to enter the city by renting space in a retail area within the city’s commercial district. In the process, Chabad encountered a zoning ordinance which banned religious assemblies within the commercial district but did allow secular assemblies. Also, while the city’s ordinances allowed for religious assemblies in residential districts, they included a requirement for a minimum of 300 feet of main road frontage for the property. Since “religious assembly” was banned from renting space in the commercial district, Chabad’s only available option would be to purchase between 3-5 adjacent properties to meet the city’s requirement. Incidentally, this requirement was reduced for secular assemblies to 200 feet of main road frontage within the city. When Chabad sued Cooper City, the judge ruled that the city had violated the organization’s rights under RLUIPA. This was also the first case in the country to successfully bring a claim based upon a city’s individual ordinances which together, in its complete effect, constituted an unreasonable limitation on the free exercise of religion. The jury awarded substantial damages.
Franklin Zemel, the attorney who represented Chabad and who represents all manner of religious assemblies throughout the country, states that RLUIPA prohibits the government from treating religious assemblies on less than equal terms with non-religious assemblies, as well as prohibiting government from unreasonably limiting religious assembly through piecemeal ordinances. Therefore, if the zoning laws allow for secular assembly in a commercial space (such as a movie theater, a school, or any other place where people gather together for a common purpose), it must also allow for religious assembly under the law. Zemel notes that he has received calls from 3-4 dozen religious assemblies across the country over the last ten years. In most situations, the group is trying to relocate or start a religious assembly and the local government won’t allow them to do so. “What you won’t see is a town code that blatantly says ‘no religious assemblies are allowed to come into our town.’ What you will see is a patchwork of ordinances that when combined, have that impact. We look for the warning signs within various ordinances to assess whether a city is violating RLUIPA.”
As your church seeks to rent or purchase property, there are two key protections for religious assemblies to keep in mind:
#1 – THE UNITED STATES CONSTITUTION
We’re fortunate to live in a country that includes religious freedom within our founding document. The First Amendment states, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
#2 – RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000 (RLUIPA)
This federal law prevents discrimination against religious institutions in zoning and landmarking laws. Per the Department of Justice’s website, “RLUIPA prohibits zoning and landmarking laws that substantially burden the religious exercise of churches or other religious assemblies or institutions absent the least restrictive means of furthering a compelling governmental interest.”
“RLUIPA prohibits zoning and landmarking laws that:
(1) treat churches or other religious assemblies or institutions on less than equal terms with nonreligious assemblies or institutions;
(2) discriminate against any assemblies or institutions on the basis of religion or religious denomination;
(3) totally exclude religious assemblies from a jurisdiction; or
(4) unreasonably limit religious assemblies, institutions, or structures within a jurisdiction.”
As RLUIPA’s Senate sponsors, Senator Hatch and the late Senator Kennedy, said in their joint statement issued upon the bill’s passage: “Zoning codes frequently exclude churches in places where they permit theaters, meetings halls, and other places where large groups of people assemble for secular purposes..., Churches have been denied the right to meet in rented storefronts, in abandoned schools, in converted funeral homes, theaters, and skating rinks—in all sorts of buildings that were permitted when they generated traffic for secular purposes.” – Statement of the Department of Justice on the Land-Use Provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA)
Despite the issues with various ordinances, Katy Welsh of Colliers International states that retail centers are interested in leasing space to religious organizations. “In recent years, we’ve seen an increasing trend of mall and shopping center landlords leasing space to churches and religious organizations. It’s a great example of how retail continues evolving to meet changing consumer demands. Retail centers are proactively being positioned to become a place for consumers to gather, socialize and be a part of the community. A church or worship facility makes the perfect tenant to fill empty space and increase foot traffic along with offering a place for people to connect.
We expect to see municipalities working with mall and shopping center landlords to help them bring innovative uses, including churches and co-working spaces, to the retail environment. Adapting the retail center with these alternative uses is a win-win for both the municipality and the landlord.”
If you run into city ordinances and zoning regulations that prohibit your church from renting or purchasing property, keep these examples in mind. Some city councils may not be aware that their rules violate the Constitution or RLUIPA. You might need to engage legal counsel to help them understand and remedy the situation. While no church leadership team wants to get into a legal dispute with its community, sometimes that’s the only option left to prevent the local government from violating religious assembly rights.
(2) www.justice.gov/sites/default/files/crt/ legacy/2010/12/15/rluipa_q_a_9-22-10_0.pdf