An empirical look at churches in the zoning process.

AuthorClowney, Stephen

There is a heated debate in the land use literature over the extent of bias against churches in the zoning process. (1) On one side, scholars argue that oppressive zoning schemes discriminate against unpopular sects and restrict the creation of new churches. (2) A growing minority of academics, however, suggest that we should approach any claims of widespread discrimination with caution. (3) In their eyes, religious institutions already wield too broad an influence over city planners and zoning codes. (4)

In response to the ongoing debate, this Comment attempts to examine empirically whether churches face discrimination in the zoning context. Specifically, in this Comment I scrutinize the records of New Haven, Connecticut, to determine whether religious institutions are treated fairly in the zoning appeals process. Under the terms of the city charter, property owners may lodge zoning appeals whenever they want to pursue construction, renovation, or expansion projects that violate the provisions of the local zoning ordinance. (5) The city then convenes a public hearing and weighs the needs of the applicant against the goals of the zoning code.

Unlike previous studies on this topic, my research examines the treatment of churches on a decision-by-decision level. To compile the data for this project I studied every zoning exemption application filed with the New Haven Board of Zoning Appeals (BZA) over a nine-year period, (6) tracking the type of relief sought, the parties involved, and the BZA's decision.

This study contributes to the ongoing discussion over the regulation of religious land uses by answering two questions. First, to what extent does the BZA treat churches differently than secular applicants? Second, are there disparities between the fates of small religious sects and mainstream denominations in applications for zoning exemptions ? My research casts some doubts upon the dominant narrative, which suggests that churches have been routinely victimized by local zoning boards. Instead, this Comment shows that New Haven religious institutions, both large and small, face little discernable discrimination from municipal land use regulations. This finding also calls into question the wisdom of recent calls for federal involvement in local land use decisions.

  1. EMPIRICAL FINDINGS

    1. Data and Method

      My study of zoning exemptions in New Haven begins in 1992, during the height of a chaotic exchange between Congress and the Supreme Court over the nature of the Free Exercise Clause, (7) and ends with the enactment of the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000, (8) a federal law that profoundly reshapes the rights of churches in land use disputes. New Haven offers several advantages for a study of this type. First, the laws and demographics of the city render it an excellent test case for scholars concerned about the fate of churches in zoning disputes. Like many medium-sized university towns, New Haven is full of the educated elites who are often accused of being "hostile to religion and to churches." (9) The laws of Connecticut also make no special allowance for religious land uses in zoning disputes. (10) Accordingly, if a general bias against churches exists, we should expect to find it in the New Haven city records. (11)

      Second, New Haven has a heterogeneous mix of spiritual communities that roughly mirrors the distribution of religious groups at the national level. (12) Established Catholic, Protestant, and Jewish populations must compete for space with smaller, mostly black, evangelical congregations, a growing Spanish-speaking minority, and an enclave of Muslim immigrants. This variety of active religious organizations should allow us to draw useful conclusions about the city's treatment of small, unpopular, and evangelical religious groups.

      Third, and perhaps most importantly, the New Haven city government has maintained a remarkable set of zoning dossiers on every BZA application filed since 1954. The dossiers include original zoning exemption applications, copies of all supporting documents (such as blueprints and traffic congestion studies), recommendations from the New Haven City Plan Commission, statements of support from neighbors, and the ultimate decisions of the BZA. In all, this study found that property holders filed 659 applications for variances and special exceptions between 1992 and 2000; forty-six came from religious institutions. (13)

      Discrimination is, of course, a notoriously difficult thing to measure. To uncover the presence of bias against religious groups I began this study by comparing the overall approval rate for church applications to the approval rate for applications by nonreligious institutions. (14) If extensive discrimination exists, we would expect the BZA to reject church applicants at a much higher rate. (15) I then sharpened the analysis by examining specific subgroups of applicants. To start, I compared exemption requests from churches to requests from secular institutions that produce similar negative externalities. Absent discrimination, land uses that produce comparable noise and traffic disruptions should receive exemption permits at the same rate, (16) Next, I isolated the applications for major church construction projects to determine whether New Haven's zoning code deterred the building of new houses of worship. Finally, my research contrasted the treatment of small, minority religious groups with that of larger, more mainstream congregations.

      In the end, this Comment should be read as an attempt to present an accurate picture of the extent to which the churches of New Haven are constrained by municipal zoning procedures. Although more small-scale studies of this type are needed, this Comment questions the prevailing belief that zoning "has become the most widespread obstacle to the free exercise of religion." (17)

    2. Results

      1. Religious Versus Secular Uses

        When churches file requests for zoning exceptions, how do they fare? The central finding of my...

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