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Congregations, localities at odds in land-use disputes

WASHINGTON (BP)–A federal appeals court’s recent decision in favor of a town that had barred a congregation from locating in a residential area has elevated the increasing debate over churches’ land-use rights.

The U.S. Third Circuit Court of Appeals overturned a federal judge’s ruling that a Philadelphia, Pa.,-area township had acted unconstitutionally in preventing a Reform Jewish congregation from moving its synagogue to a former Catholic convent in a residential neighborhood.

In its Oct. 16 opinion in Congregation Kol Ami v. Abington Township, a three-judge panel unanimously ruled against the congregation, saying, “[W]e do not believe land-use planners can assume anymore that religious uses are inherently compatible with family and residential uses.”

Municipalities have great leeway in drawing up land-use ordinances, the judges wrote in returning the case to the federal judge for consideration consistent with their opinion. “Churches may be incompatible with residential zones,” because of congestion, traffic, parking problems and a decline in property values, the panel wrote, citing a 1975 opinion.

The ruling marked a government win in what appears to be a growing battle between municipalities and churches. Churches have filed about 50 lawsuits against local governments that have sought to control their location and size, according to USA Today. Some notable cases include:

— Castle Hills First Baptist Church v. City of Castle Hills, in which the city council of a suburb of San Antonio, Texas, has blocked an 11,500-member Southern Baptist church from constructing parking lots and completing one of its buildings.

— Calvary Chapel O’Hare v. Village of Franklin Park, in which a church was prohibited from occupying a bowling alley under an Illinois village’s zoning ordinance. Franklin Park eventually amended its zoning code, and the church dropped the suit in September.

— Cottonwood Christian Center v. City of Cypress, in which a California city invoked eminent domain to obtain the church’s new 18-acre property and turn it over to the discount chain Costco. A federal judge blocked the city’s action in August by granting a preliminary injunction and setting a trial date for March.

In each case, the church has cited the local government’s action as a violation of a 2000 federal law, the Religious Land Use and Institutionalized Persons Act. RLUIPA prohibits land-use laws that substantially burden the free exercise of religion by a person or institution. The only exception is if the government can show it has a compelling interest and is using the least restrictive means to advance that interest.

Congregation Kol Ami also depended on RLUIPA in its suit, but the judge did not cite the law in his opinion. The Becket Fund for Religious Liberty, which has aided the Jewish congregation and the churches already cited, says it will present its argument in the rehearing as a RLUIPA case.

The Supreme Court has yet to rule on RLUIPA’s constitutionality after striking down its predecessor, the Religious Freedom Restoration Act. Church-state specialists told Christianity Today they think RLUIPA is safe, although there are some concerns.

“I would be very surprised if it were declared unconstitutional by the Supreme Court,” Church Law & Tax Report editor Richard Hammar told Christianity Today in an article posted on its Internet site Oct. 23.

The Becket Fund’s Patrick Korten told CT, “RLUIPA is for the moment secure. Certainly in all the cases we are involved in, it is having a very salutary effect in enabling us to get local governments to recognize the religious liberties they’ve been threatening.”

Jay Sekulow, chief counsel for the American Center for Law and Justice, expressed concerns about the Kol Ami case.

“The dangerous aspect of this case is that by saying that religious use is incompatible with residential areas, it basically establishes a compelling interest in keeping churches out of these areas,” Sekulow told CT. “That’s a very dangerous analysis and a misunderstanding of the compelling-interest doctrine.”

Korten and Hammar acknowledged residents’ concerns should be considered. RLUIPA provides a balance between the claims of churches and homeowners, Hammar said.

“How many of us would like to see a megachurch locate across the street from our home?” Hammar told CT. “I can empathize with neighbors who are upset when they hear that a large church wants to locate in their neighborhood.

“It must be acknowledged, however, that churches are different from Wal-Marts,” he said. “The Constitution does not protect the right to shop at discount stores. But it does guarantee the free exercise of religion. So, at the end of the day it should take a compelling case to deny a church the right to locate in [a] residential area.”

In many cases, municipalities are not concerned with homeowners’ rights as much as the tax-free status of congregations, Sekulow charged. “The primary reason why religious groups are being denied the ability to open up is tax revenue,” he said. “That’s what this is all about — money.”

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