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  • John W. Mauck

No Room at the Inn


Sooner or later, you'll get the call:


"Attorney Christian, this is Pastor Harmon of the Jesus Church.  We need your advice.  After over a year of searching, the church building committee has found a wonderful location for our congregation in the old Marsh School building in the Heights neighborhood. But the realtor tells us we can't have the church in the school unless the zoning board gives us something called "a special use permit." 


What's worse, the president of the neighborhood association, Tom Whittaker, has heard about our plans.  You remember him, he's the banker who made the mortgage to that abortion clinic we helped shut down last year.  He told the realtor we'll get a special use permit over his dead body. He's been telling neighbors the Jesus Church is a bunch of fanatics!  The neighbors are circulating a petition against us. They seem to be afraid our church will hurt their property values. What should we do?" 


Whether you are a zoning expert or a criminal defense attorney, as a Christian lawyer, the church, possibly your own congregation, looks to you for answers when problems like this arise.  All across America flourishing congregations are seeking room to grow: home fellowships want to rent storefronts, congregations meeting in the high school gym think about converting the old K-Mart, and mega churches seek to acquire land from the neighbors for more parking.


In every situation the same question will be asked: "Does the zoning permit a church?" And all across America the confluence of more restrictive zoning laws, environmental concerns, greed of existing property owners and blatant religious bigotry is increasing so that in every situation the answer to that question is more likely to be "churches not allowed here" or "churches allowed only by permission." 


So, in response to Pastor Harmon's plaint, do you: 

(a) quote Romans 12:18 and advise the church to look for 

another location? 

(b) tell him to read a Frank Perretti novel? 

(c) advise the church to pray and fast? or 

(d) tell the church to raise a litigation "war chest?" 

Having experienced this scenario a number of times I would recommend (b).  Although (c) is always appropriate, if Pastor Harmon is familiar with Perretti he will know that prayer is included in your advice.  If he is not familiar with spiritual warfare, the prayers are less likely to be well directed. As to (a), remember that the writer of Romans never voluntarily surrendered the freedom to preach the Gospel. As agents of God, we do not have the authority to make decisions which will deprive others of the right to hear the Gospel. Thus, whether "to live at peace" in this situation does not depend on us. Answer (d) may be appropriate, but at a later date. 


Of course, two immediate practical steps for an attorney Christian to take are review of the real estate contract and the zoning ordinance.  The contract should have a "zoning contingency clause" allowing the church a reasonable time to apply for the special use permit and obtain the requisite approval through public hearings.  Zoning ordinances come in a thousand flavors; each has its own "standards" for granting of a special use permit. However, the standards are rarely precise and generally allow the hearing board broad discretion.  A typical zoning ordinance might read: 

"A special use shall be granted if the zoning commission finds that the proposed use: 

1. will not be detrimental to surrounding properties; 

2. will not unduly increase traffic; and 

3. will not change the essential character of the neighborhood." 

Because special use standards are inherently subjective, the chances of success often depend greatly upon the quality of the legal presentation.  In general, states have two types of systems for hearings of special use application permits: The first system requires that all evidence which a petitioner may ever want to present be brought before the hearing board and the second system allows a simple hearing reserving the petitioner's right to bring in experts later through a trial de novo if the hearing board or city council denies the special use permit. The first system constrains the church to line up its witnesses (pastors, building search committee chairman, children's ed coordinator, et al.) andexperts (appraisers, realtors, traffic, land use, et al.) for the initial hearing because the rules of procedure preclude introduction of new evidence in any later court proceedings. This system tends to ensure that the hearing board gets detailed information in making its decision. The second system is less informative to the hearing board, but a lot less expensive since the church does not need to hire experts unless the hearing board denies the permit. Whichever system is followed in your state, if serious opposition to the application appears likely, attorney Christian should plan, so far, the budget of the Jesus Church permits, to present a full slate of witnesses and experts to testify as to why the proposed use meets the standards of the ordinance. 


The zoning ordinance should also be reviewed carefully for constitutionality. Is it  consistent with the state statute enabling municipalities to zone and the state and U.S. Constitution? I usually read an ordinance with three questions in mind. First, are churches freely allowed in other zones of the city? Schad v. Mount Ephraim, 452 U.S. 61 (1981) held that a zoning ordinance which did not freely allow "adult entertainment" in any part of the city and did not sufficiently justify the exclusion was invalid as a violation of the Free Speech clause. No American court has ever upheld a zoning ordinance which did not allow churches as a permitted use somewhere in the city, and in five cases over the last forty years the Courts, citing cities which had such restrictions. However many, if not most ordinances either exclude or require a special use permit for churches in every zone. Thus, such ordinances probably violate Free Exercise, Free Speech, Freedom of Assembly or Freedom of Association guarantees. Second, are the standards in the ordinance sufficiently specific to afford the church due process of law or are they so vague and discretionary that the hearing board can arbitrarily deny the permit? (See Freedom v. Maryland, 308 U.S. 51 (1965); International Society for Krishna Consciousness v. Eaves, 601 F.2d 809 (5th Cir. 1979).  Third, does the ordinance require churches to obtain "special permission" while freely allowing assembly uses such as theaters, hotels, funeral parlors, and meeting halls, which from, "land use point of view are equal or less intensive than a church?” If so, the ordinance may violate the Equal Protection Clause and constitute religious discrimination. (See City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985) and Love Church v. City of Evanston, 671 F. Supp. 515 (N.D. Ill., 1987). After the ordinance has been analyzed for state statutory, state Constitutional, Free Exercise, Establishment, Free Speech, Freedom of Assembly, Freedom of Association, Due Process and Equal Protection Arguments, a brief or letter outlining the legal arguments should be submitted to the Hearing Board and its attorney, well before the hearing date, with the gentle suggestion that any violations of the U.S. Civil Rights Act (discrimination based upon religion or other impermissible categories), could render the city liable for damages and attorney’s fees. Having taken those steps, the church will be ready for a favorable zoning hearing, but if necessary, a court challenge. 

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