Break it Down: Make No Small Plans

Posted on November 9, 2016

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November’s Topic: Make No Small Plans

Land Use Planning Challenges, Opportunities and Trends

Lawrence DiRe

By: Lawrence DiRe, Town Planner, Cape Charles, VA

Connect: LinkedIn

And now I would like to spend a few minutes on religion and politics. Awkward silence. Cricket chirps.

OK, not really religion and politics. How about local land use regulations and their effect on places of worship. Better now? OK.

Image result for cricket chirps gifThe Religious Land Use and Institutionalized Persons Act (RLUIPA) is a piece of legislation I learned about in the best way – through life experience. It’s a long and complex story. And it involves a mosque. Suffice to say after a year-long US Department of Justice investigation and impending deposition to Federal prosecutors, justice prevailed for the congregation. Here are a few things to know about RLUIPA. First, the law passed through both houses of Congress by unanimous consent (Congress once worked like that). Second, the law says that government shall not impose any regulation placing a substantial burden on any person’s or institution’s exercise of religion. RLUIPA imposes the two-pronged test on the government to prove that the regulation is based in a compelling government interest and the regulation is the least restrictive means of furthering that compelling interest. Third, check the record and you’ll find that local governments fail this two-pronged test all the time. Fourth, you should keep a careful watch on your organization’s land use laws.

In my decade and a half in public service I have seen government do some things well, others not so well. You too? Even in local government organizations that do a good job of community engagement and collaborative, broad-based decision making, the constituency of local faith community leaders is frequently treated at arms’ length. While regular, formal modes of communication between government and business, education, and non-profit organization leaders are common, similar interaction with faith community leaders is less common.  To be sure there is that whole church\state high wall separation business. Sometimes local governments and faith leaders only interact around difficult social justice, housing, or law enforcement issues. The local pastor’s association is certainly not the first constituency group that springs to mind when revising the municipal zoning ordinance. Perhaps it should be.

In preparing this post I did a check of the land use and zoning regulations of my current employer, the Town of Cape Charles, VA. While better than I’ve seen elsewhere, there are still conditions in our zoning ordinance that make you go “hmmmm.” Perhaps your organization has legislated a definition of “church.” Mine has, and it says this: “a building or structure, or groups of buildings or structures, that by design and construction are primarily intended for conducting organized religious services and associated accessory uses.” Anyone care to hazard a guess about the correct design and construction for organized religious services? Gothic? Romanesque? Wood? Vinyl clad? One-story? Round? Cruciform?  Sized for a congregation of hundreds? Thousands? Dozens? Although well-intended for ensuring appropriate appearance, scale, massing, and proportion with its surroundings, this type of regulation is likely illegal under RLUIPA.

Never at a loss for words, the same zoning ordinance defines “place of worship” as “(1) a church, synagogue, temple, mosque or other facility that is used for prayer, worship, and related activities by persons of similar beliefs; (2) a special purpose building that is architecturally designed and particularly adapted for the primary use of conducting on a regular basis formal religious services by a religious congregation.” Why make things more difficult and potentially expose the municipal government to avoidable litigation? Part 1 says all you need to legislate a place of worship; part 2 not so much.

A quick look through the Town’s sign ordinance allows a church sign to be up to twenty square feet, while downtown commercial signs max out at twelve. Presumably the church sign will promote information of importance to that congregation (although it could in theory say “Let’s Go Mets!”), while the downtown commercial sign will promote business-related information (although it could in theory say “Read the Psalms”). Such sign regulations fail several tests including the content neutral test. As currently written, the Town’s sign ordinance seems to be promoting religious content speech more than commercial content speech by giving the former more space than the latter. Those of you familiar with the summer 2015 SCOTUS ruling in the Reed v Town of Gilbert case will remember that case involved a nomadic congregation plaintiff and their directional sign postings in the highway right of way. The consequences of that decision reverberate to this day.

I could go on, because this is the stuff that makes me love local government service, but in closing a few points to consider:

  • make no mistake about the willingness of religious congregations to defend their Constitutional rights
  • corollary to that, make no mistake about the willingness of very accomplished lawyers to represent those congregations
  • the Courts are deciding for congregations against localities
  • review your zoning and planning documents and connect the dots relating to faith-based land uses broadly defined, and do it before permit applications are filed
  • get ahead of potential conflicts by knowing the congregations in your community and their respective land use needs
  • do some light reading – I recommend the US Department of Justice website or just google RLUIPA cases.

Please feel free to contact me if you have any questions or want to discuss this further.

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