Churching NIMBYs: Creating Affordable Housing on Church Property.

• Author: Reidy, Patrick E.
• Date: 01 February 2024

FEATURE CONTENTS
                INTRODUCTION 1257 I. THE AFFORDABLE HOUSING 1264 CRISIS AND HOUSES OF WORSHIP A. America's Housing 1267 Crisis and Land-Use Regulation B. Crisis of Houses of Worship 1277 II. AFFORDABLE HOUSING ON 1282 CHURCH PROPERTY A. Yes, In God's Backyard 1284 B. Development Potential 1293 on Church Property 1. Archdiocese of Chicago 1297 2. Diocese of Oakland 1300 C. Reforming Land-Use 1303 Regulation Through Legislation
                III. RELIGIOUS LIBERTY AND 1310 AFFORDABLE HOUSING A. Mast v. Fillmore County 1315 B. Scrutinizing Exceptions 1319 to Zoning C. Defining the "Religious Exercise" of Faith Communities Creating Affordable Housing 1321 on Church Property D. Discerning the "Substantial Burden" on Faith Communities Creating Affordable Housing on 1325 Church Property
                CONCLUSION 1332
                

Is this not the fast that I choose: releasing those bound unjustly
                untying the thongs of the yoke; setting free the oppressed, breaking
                off every yoke? Is it not sharing your bread with the hungry, bringing
                the afflicted and the homeless into your house; clothing the naked when
                you see them, and not turning your back on your own flesh? Then your
                light shall break forth like the dawn
                

-- Isaiah 58:6-8 (1)

INTRODUCTION

In July 2021, Glencliff United Methodist Church welcomed individuals and families experiencing homelessness into twenty-two microhomes behind its South Nashville sanctuary. (2) In offering a portion of her church's land for "The Village at Glencliff" Reverend Ingrid McIntyre hoped to create "a new space... for the people she encountered every day trying to survive on Nashville's streets," unable to afford the exorbitant price of local housing. (3) The Village aims to nurture a "loving, hospitable, compassionate and rehabilitative community for our friends who are transitioning... toward permanent supportive housing." (4) For members of Glencliff United Methodist Church, efforts to provide transitional housing on church property are part of their Christian discipleship, an uplifting religious mission that reaches beyond the walls of their sanctuary. (5)

This mission reaches outside the sanctuary because communities of faith gather for more than worship. Across the United States, churches like Glencliff serve the spiritual and corporal needs of believers and unbelievers alike, educating the young in schools, feeding the hungry in soup kitchens, welcoming the homeless in shelters, caring for the sick in clinics, and burying the dead in cemeteries. (6) These ministries on church-owned property flow from the same religious belief given ritual expression in worship. (7) Faith communities discern how to use their property based on what their theological and moral convictions require.

In recent years, these convictions have inspired numerous faith communities to create affordable housing on church property. Some, like Glencliff, have built microhomes behind their houses of worship. (8) Others have converted housing once used by religious ministers--from rectories to abbeys to convents--into low-income residences. (9) Still others are repurposing their vacant schools, church parking lots, and undeveloped parcels of land for affordable-housing units, both permanent (e.g., low-income senior housing) and temporary (e.g., emergency shelters). (10) Within housing-advocacy circles and among faith communities, these continent-wide efforts to create affordable housing on church property have manifested an affirmative declaration: "Yes, In God's Backyard." (11)

Faith communities can breathe new life into their underutilized property by creating affordable housing. And local governments can grow their affordable housing supply by allowing faith communities such adaptive reuse. But such mutual benefit does not exempt faith communities from challenge when they choose to redevelop their property for affordable housing. Neighbors may seek to thwart faith communities like Glencliff from introducing denser, multifamily housing in their backyards. (12) When they succeed, these challenges from NIMBY ("Not In My Backyard") neighbors can altogether limit new housing construction and the free exercise of religion, contributing to America's affordable-housing crisis.

The affordable-housing crisis has been extensively documented in legal scholarship and popular media. In particular, scholars and commentators have underscored the pernicious role of exclusionary zoning--that is, local land-use controls designed to prohibit the construction of less costly forms of housing--in strangling housing production, ultimately sending regional housing prices skyward. (13) A Professor Robert C. Ellickson argues in his new book, "Low-visibility zoning controls constitute what is likely the most consequential regulatory program in the United States." (14) Proposals seeking to permit greater residential density, particularly in neighborhoods of existing single-family homes, largely fail at city hall. (15)

While many exclusionary practices, both past and present, have been motivated by racism and classism, local homeowners' interest in fiscal advantage remains a principal catalyst for exclusion. (16) Exclusionary policies can raise home values. Where schools are funded primarily by local property taxes, "measures that prevent the construction of least-cost housing deter entry by those who would not pay their own way." (17) When suburbs have "few close counterparts, exclusion can enable homeowners to drive up the value of their houses by preventing the construction of competing units." (18) As zoning issues arise in established neighborhoods, local officials typically defer to residents living closest by, who standardly prefer to maintain the status quo. (19)

Affordable-housing advocates and legal scholars suggest that state legislatures and Congress should correct local zoning abuses. Where local governments zone without concern for effects on regional housing consumers, states can preempt their power to zone, freeing state judiciaries to decide against exclusionary practices. Federal aid for housing vouchers and state agencies established to address local zoning issues can bolster these state-level efforts. (20) But such solutions presume that property owners in residentially zoned areas all think alike, seeking to drive up their properties' value by preventing new housing construction.

When faith communities create affordable housing on church property, much of which is located in residentially zoned areas, they seek something other than fair market value. Some might call it "charity" (tzedakah) or "discipleship," a commitment to "welcome the stranger," or to "love your neighbor as yourself." Certainly, religious institutions have vast and diverse in rem portfolios, and--for various economic, sociological, and demographic reasons--many properties owned by them are underutilized. (21) Not every property can be repurposed for every use; indeed, some faith traditions prohibit certain future uses of church property as theologically or morally illicit. (22) But where affordable housing remains an acceptable use, communities of faith should be allowed to repurpose their property.

This Feature thus proposes a novel response to exclusionary zoning: religious liberty. Where sincerely held religious belief inspires faith communities' efforts to create affordable housing, these communities can assert the free-exercise protections of the First Amendment (23) and the Religious Land Use and Institutionalized Persons Act (24) (RLUIPA) against land-use decisions that obstruct denser, less expensive, multifamily developments on church land. (25)

In particular, RLUIPA's "substantial burden" provision explicitly draws together religious exercise and land use:

No government shall impose or implement a land use regulation in a
                manner that imposes a substantial burden on the religious exercise of a
                person, including a religious assembly or institution, unless the
                government demonstrates that imposition of the burden on that person
                assembly, or institution--(A) is in furtherance of a compelling
                government interest; and (B) is the least restrictive means of
                furthering that compelling governmental interest. (26)
                

Under RLUIPA, "land use regulation" denotes "a zoning or landmarking law... that limits or restricts a claimant's use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land...." (27) And while courts often construe "religious exercise" relative to church property in line with worship and ritual, (28) RLUIPA offers a capacious definition: "The term 'religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief," and "[t]he use, building, or conversion of real property for religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose." (29)

A with many topics exploring the intersection of property law and religion, there is scant legal scholarship about faith communities repurposing their property for housing, and legal scholars have yet to evaluate the practical, theoretical, or doctrinal contours of "Yes, In God's Backyard." (30) The literature on religious liberty and church property primarily focuses on litigation involving faith communities seeking to enter residential zones and their efforts to create houses of worship or other ministries within those areas. (31) This Feature aims to bolster the scholarly conversation, revealing how church property and religious liberty can be powerfully transformative assets where local land-use regimes have limited housing growth and less costly forms of housing. While providing tools for housing advocates to develop new residential options in the face of persistent exclusionary zoning, this Feature offers multiple models for faith...