From the Star
Star Editorial

By O. Max Gardner III

Others have complained about he "large number" of homeless men and women who "hang around" the Mission and allegedly harass business people and shoppers in uptown Shelby.

While these arguments have raged in the background, the City of Shelby has quietly taken administrative actions against the church for alleged violations of the zoning ordinance, the fire code, the building code and other public regulations.  In fact, Shelby Building Inspector has advised the Church to stop the seven-days-a-week lunch service, to cease all bible studies and chapel services, to terminate the practice of offering hot showers and clean clothes to the homeless, and to shut down a new training program for homeless men and women.  And, apparently, the church facility will be padlocked unless all of these activities are terminated by September 20, 2001.

Although the public dialogue has focused on the pros and cons of a church devoted to assisting the homeless, little or no comments have been made about the legality of the actions of the City of Shelby.  These actions should be questioned in light of the Federal "Religious Land Use and Institutionalized Persons Act."  This new Federal Law codified as Section 2000 of Chapter 42 of the United States Code prohibits any zoning that "substantially burdens" religious exercise unless the government can show a "compelling interest"-a test that is nearly impossible for local governments to meet in many cases.  Brad Dacus, President of the Pacific Justice Institute in Sacramento, California, has described this new law as follows:  "We have seen our BB gun replaced by an atomic bomb." 

What is the "Religious Land Use and Institutionalized Persons Act"?  It is a new Federal statute that protects "the religious exercise of a person, including a religious assembly or institution."  It defines "religious exercise" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief."  It also provides that "the use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise for the person or entity that uses or intends to use the property for that purpose."  This definition clearly includes the construction, expansion or remodeling of a church or other place of worship, as well as use of a personal home or business property for worship, prayer meetings or other religious activities.  The definition also probably covers parking lots, fellowship halls, schools, day care centers, cemeteries and summer camps.  Of particular interest to the City of Shelby is the inclusion in the statute of "mission" activities, such as homeless shelters, soup kitchens, counseling centers and drug rehabilitation centers.

The statute by its own terms clearly applies to zoning regulations by local governments since it specifically states that it covers "land use regulations."  The term "land use regulations" is defined as a "zoning or land-marking law."  The statute also probably covers building codes since there is nothing the plain language of the law that would indicate it does not include building codes.  And, even though the legislative history (i.e., the statements of members of Congress) indicates that fire codes are not covered, the statute is silent on this point.  As a result, it is possible that the new law could be interpreted by the courts to apply to local "fire codes."  In support of this interpretation, the statute provides that it "shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution."

This new Federal law has been used by churches and other religious groups as a powerful weapon in a wide range of zoning disputes since it was enacted in the Fall of 2000.  Since that date, at least 17 lawsuits have been filed by church related groups.  In many more cases, religious groups have threatened to sue and local governments have generally responded by giving them what they want.  It is a perfect weapon for use by church groups since it threatens a lengthy and expensive federal lawsuit if the local government unit does not back down from normal zoning and regulatory enforcement actions. 

Four cases in our neighboring State of Georgia provide excellent examples of how churches and church groups are using this new Federal law.  In Temple Ministries of Atlanta v City of Forest Park, No. 1:10-CV-0958, filed before the United States District Court for the Northern District of Georgia,  a church was denied a conditional use permit to hold services in a commercial district, even though such permits were not required of private clubs, lodges, theatres, auditoriums and other places of assembly.  The church filed a civil lawsuit in Federal Court  under this new law.  The case is presently pending.

In Divine Faith Ministries v Clayton, No. 01-CV-0488-BBM, also filed in  the United States District Court for the Northern District of Georgia, a church was denied a special use permit for construction of a "mega-church" in a rural section of the county.  The church alleged that this action by the county government violated the Religious Land Use Act and filed the lawsuit for an order requiring the county to issue the special use permit and for damages, costs and legal fees.  This case is also pending at this time.

In Reidsville, Georgia, the Come As You Are Fellowship church sought to hold services in space that it rented in a business district where churches were excluded under the local zoning ordinance.  However, this ordinance allowed other forms of assembly in the same district.  When the church threatened a federal suit under the new law, the city granted a variance that allowed the church to hold such religious services.

Finally, in Dalton, Georgia, the Iglesia Misionera church moved into a storefront location in the central business district.  The local zoning ordinance excluded any such activities in this area of  Dalton.  After the church threatened to sue, the city dropped its opposition.

Two cases in California and Colorado are very close to the situation in Shelby with the Welcome Baptist Rescue Mission.  In the California case, the Foothills Christian Fellowship Church agreed to buy a mall in a commercial district, but the City of El Cajon refused to grant a conditional use permit.  The church's plan for the mall included a 2,000 person sanctuary, classrooms, a day care center, banquet rooms, a kitchen, a gym and an outside playground. The church also planned to offer "hot meals" to the homeless.   A group of businesses in the area has indicated its strong opposition to these church activities and  in response the church has indicated that it plans to file a lawsuit in Federal court under the new law. 

In Colorado Springs, Colorado, three religious groups want to use space in a community center for a homeless shelter.  Neighbors, who were strongly opposed, file a suit in State court to enjoin the operation of any such homeless facility.  The church groups have now intervened in the lawsuit raising various claims under the new Federal law.  The case is Robinson v City of Colorado Springs, No. 00-CV-3437 (El Paso County District Court).

Is this new law Constitutional?  A prior federal statute, the "Religious Freedom Restoration Act" (RFRA), also prohibited local laws that substantially burdened religious exercise unless the government had a compelling interest.  This prior law was enacted by Congress in 1993 but was struck down by the Supreme Court in 1997 in the case of City of Boerne v. Flores, 521 U.S. 507. 

The prior law, however, did not specifically address zoning and very few challenges were brought by religious groups based on zoning under this law.  Michael Jurusik, 
a municipal attorney in Chicago, has stated that the new law may be more useful 
to religious groups in zoning cases because it "is a direct, focused statute, clearly directed at land use regulation."  Jerold Kayden, a professor a the Harvard University Graduate School of Design and a co-editor of a book on zoning, believes the new law is in fact constitutional  because "it is the first federal law ever to be directed at zoning."

Only time and a substantial amount of litigation will answer the question of whether or not the new law is constitutional and if so the full extent of its application to local zoning ordinances, building codes and fire codes.  In the interim, all church groups certainly have more leverage and power in dealing with local governmental units.  Reverend David Irish of Trinity Baptist Church recently opened a public meeting of the Welcome Baptist Rescue Mission by asking the Lord "to do an unusual work-a miracle."  The Lord may not have answered Reverend Irish's prayers but the United States Congress may have!

*For more information contact the Becket Fund for Religious Liberty, which is based in Washington and represents religious groups.  It can be found at http://www.rluipa.org or by telephone at 1 202 955-0095.  Another organization that has been involved in several suits and can be contacted for information and assistance is the Pacific Justice Institute, based in Sacramento, California.  It can be contacted at http://www.pacificjustice.org or at 1 916 857-6900.