Chapter 7 Regulation of Churches and Religious Institutions

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 7 Regulation of Churches and Religious Institutions

The location of churches and other religious sanctuaries can be regulated by zoning ordinances in the proper case, e.g., South Side Move of God Church v. Zoning Bd. of Appeals of the City of Chicago.¹ Thus, questions of the impact of traffic and similar considerations may be taken into account in regulating the proper location of religious institutions.

However, it must be noted that religious institutions are also imbued with the protection of the First Amendment and that, in determining whether a restriction is proper, a court will take into consideration the First Amendment rights protecting the exercise of religious beliefs.²Lubavitch Chabad House of Illinois, Inc. v. City of Evanston involved an action brought by a nonprofit religious corporation against the City of Evanston seeking a judgment declaring that the City should have granted the religious corporation's application for a special use permit. The appellate court upheld the trial court's finding that the plaintiff met all of the criteria for a special use and further found that the action of the City in denying the permit appeared to be based on the fear of the City that the "plaintiff will use its property to permit the plaintiffs to practice their ancient religion in a way they have conducted it for centuries . . ."³ Neither the trial court nor the appellate court saw any apparent difference between the plaintiff's proposed use and the uses made by other religious associations in the area of the subject property.

There is a presumption of validity in favor of actions taken by legislative bodies because zoning is mainly a legislative function. However, where the impact of zoning decisions in some way limits the free exercise of religion or other First Amendment rights, the presumption of validity is significantly diminished.⁴

In City of Boerne v. Flores, Archbishop of San Antonio,⁵ the U.S. Supreme Court held that the Religious Freedom Restoration Act of 1993 (RFRA)⁶ was invalid. In this case, the Catholic Archbishop of San Antonio applied for a building permit to enlarge a church in Boerne, Texas. The local zoning authorities denied the permit relying on an ordinance governing historic preservation. The archbishop brought suit challenging the denial of the permit. The U.S. Supreme Court, in reversing the Fifth Circuit Court of Appeals, held that Congress exceeded the scope of its enforcement power under Section 5 of the Fourteenth Amendment by enacting RFRA. A majority of the Court determined that RFRA was an attempt to make substantive changes in the constitutional protections proscribing state conduct. The majority believed that the RFRA contradicted vital principals necessary to maintain the separation of powers and the federal state balance of power. The City of Boerne case must also be read in light of Employment Div., Dept. of Human Resources of Oregon v. Smith,⁷ in which the Court upheld a state law of general applicability criminalizing peyote use to deny unemployment benefits to Native American church members because of such use. In that case, the Court declined to apply the balancing test, which sought to determine whether a particular law substantially burdens a religious practice and, if so, whether the burden is justified by a compelling government interest.

In an attempt to overcome some of the Court's objections to the RFRA, and to reestablish the balancing test,⁸ Congress responded to Boerne by enacting the Religious Land...