Protecting Free Exercise

Rob Boston November/December 1998September/October 1999 For 10 years Grant Bennett and his fellow members of the Church of Jesus Christ of Latter-Day Saints (the Mormons) had been gathering in a simple
meetinghouse for religious services in Belmont, Massachusetts.

Then, in October of 1995, church officials decided the time had come to erect a proper church--an elaborate 70,000-square-foot temple with tall spires reaching into the sky and a parking lot that could accommodate up to 250 cars.

But some folks in the neighborhood of this posh Boston suburb were less than enthusiastic about the Mormons' plans. Although construction on the temple was ongoing, nearby residents filed two lawsuits--one in state court and one in federal court--asserting that a Massachusetts law that gives churches the right to build just about anywhere is an unconstitutional preference to religion.

Mormon temples are known for their large spires, and this is what the Belmont Aavenue residents who oppose the building are using as the foundation for their legal challenge. The city's zoning laws permit a church to be as high as 60 feet, with steeples that can go an additional 20 feet higher. The Mormon temple's spire would be 139 feet tall, requiring a special permit from the city.

Church leaders got the permit, and unhappy town residents went to court.

"I think it's fair to say the neighbors wanted to stop the building, but the only avenue they had was to stop the special permit for the steeple in the hope that if that were not issued, the church would essentially go away," Bennett says.

At last reporting, the church was going ahead with a smaller steeple. The steel infrastructure had been erected, and huge granite blocks were being moved into place. Bennett said the church wants good relations with its neighbors but had no plans to stop the construction.

Attorneys for three Belmont residents who have filed suit in federal court saw things differently. They said they were not motivated by religious prejudice; they simply didn't want a building the size of the Mormon temple in their backyard.

"The sheer enormity of it is astounding," says attorney Michael Peirce, who represents the neighbors. "It affects the people's backyards, who literally back up to it. It will have a massive impact. There will be a huge retaining wall. The impact from a visual and closeness perspective is one of the things that dramatically drove this."

Belmont's Mormons are not the only religious group confronting zoning laws. In fact, it's a struggle that's taking place all over America. For a variety of reasons, churches are no longer being seen as desirable neighbors and, when it comes to zoning, are increasingly being treated like 7-Eleven's and strip malls.

Several years ago a dispute erupted in Miami when a Haitian Pentecostal church tried to convert an empty commercial building into a worship facility. The owner of a nearby topless bar protested, citing a city law that forbids nude dancing establishments from operating near churches. The owner of the topless club said he was there first and that if anyone had to leave, it should be the church.

Storefront churches, which often locate in commercial areas, often run into zoning roadblocks. In 1990 the city of Minneapolis passed a law designed to curb the number of storefront churches opening in the downtown area. City officials said they want the space to be used by taxpaying businesses.

Chicago has a similar law banning churches from manufacturing areas. A few years ago 50 storefront churches in Chicago joined forces to challenge the law, citing the Religious Freedom Restoration Act, a federal law passed by Congress in 1993. But the RFRA was declared unconstitutional by the Supreme Court in 1997, choking off that avenue of legal attack.

In Montgomery County, Maryland, a fast-growing Washington, D.C., suburb, government officials have been struggling to find ways to preserve the county's rapidly disappearing green space. One solution was to require new churches to leave at least 40 to 50 percent of their lots undeveloped. Several church leaders called the proposal antireligious and discriminatory.

Why are churches suddenly having so much trouble over zoning?
Part of the answer may be the changing nature of how Americans live. Older cities often have residential and commercial areas that abut, and it's not uncommon to see a church in the mix, just as one might see a barbershop or a dental office.

But the suburbs, where increasing numbers of Americans live, are quite different. Many suburban residents are used to a clear demarcation line between commercial and residential areas, the latter marked by quiet cul-de-sacs, well-kept lawns, and driveways housing shiny sport utility vehicles. People in these neighborhoods don't want to see that line crossed, perhaps fearing it would open a floodgate for other types of development and make their tranquil neighborhoods more like the noisy cities they deliberately chose not to live in.

Tying into this is the NIMBI "not in my backyard" syndrome. Church attendance in America remains high, and Americans remain one of the most religious peoples on the globe. So the problem is not that Americans have suddenly turned against religion. Americans want churches to attend; they just don't necessarily want them too close to their homes.

"The change has been gradual," says John Mack, a Chicago attorney who helps churches deal with zoning issues. "There are several reasons. Church attendance patterns have changed from the '50s and '60s. People used to attend church in the neighborhood. Now people don't feel a need to live that close together. They'll drive past 30 or 40 churches to get to the one they feel they should be attending."

Mack says that since many people these days drive to a different community to attend church, officials who make the laws in the town where that particular church is located are not worried about offending community sentiment by applying restrictive zoning laws.

At the same time, Mack notes, zoning laws are becoming increasingly complex, and people are demanding that nothing come into their neighborhoods that might depress property values. (This same sentiment has resulted in restrictive "covenants" in many suburban neighborhoods. These cover everything from how high fences can be and where trucks can be parked to how wide a driveway may be and what colors are acceptable for shutters.) As a result, churches are often finding they have nowhere to go.

"To really simplify it," Mack said, "there are three zoning areas: residential, commercial, and manufacturing. Manufacturing says: 'Churches don't belong here because we don't want them complaining about our noise and smoke.' Commercial areas say: 'We don't want them interrupting our business community and competing with us for the best visibility. They belong in the residential zones.' Residential people are saying: 'We want peace and quiet; we don't want traffic and neighborhood residential discontinuity.' Those are the factors."

Traffic is a major component of the Belmont dispute. The Mormon temple there will serve all of New England and parts of southeastern Canada. The temple's neighbors say the amount of traffic this will generate is unacceptable.

"It will be a regional center that will serve all of New England and southern Canada," says attorney Peirce. "It's used only for certain functions. Every wedding must be in a temple. This is the only temple in the area. People will constantly be coming there. This is not a low-impact neighborhood church. That's how they want to portray it, but it's nowhere near that."

Bennett says he can understand the concerns over traffic but believes the neighbors have assumed too much. "The neighbors very rationally assumed it would generate a great deal of traffic," he says. "The church hired an independent traffic consulting firm that put up automatic traffic readers on the driveways of the Orlando temple and the Dallas temple and counted the cars coming in and out. The usage pattern is not one where we have large services at one time. People come at an individual time to participate in religious ordinances. Saturdays are busy, because that's when people are off work. But the nature of the building indicates we won't have thousands of people there at one time."

The dispute in Belmont may seem like a local affair, but it has national implications. One of the reasons zoning is so perplexing for churches and the attorneys who work with them is that the U.S. Supreme Court has never directly addressed the issue--despite numerous opportunities to do so. Of course, as the Belmont case works its way up through the federal courts it could, in a few years, present the High Court with another opportunity.

Mack notes that the Supreme Court has ruled on zoning matters dealing with nonchurch entities, such as the right of adult book stores, topless bars, and other adult entertainment facilities to locate in certain sections of cities. He would like to see the court do the same for churches.

As matters now stand, Mack asserts, churches are at the mercy of their geographical location. In the South, he said, zoning laws are less stringent, and a church has "a good chance of getting your use. In the Midwest you've got a fighting chance. On the East and West coasts you've got an uphill battle."

An added wrinkle to the Belmont dispute is that the neighbors are challenging not just the right of the Mormons to build in their neighborhood, but also a 1950s-era state law called the "Dover Amendment." The legislature passed the law after officials in the town of Dover refused to allow a Catholic church to build a parochial school in town. The law states that certain types of institutions, including educational facilities, agriculture facilities, elderly-care homes, and churches can build essentially wherever they want in the state.

Mark White, one of the attorneys working with the Belmont neighbors, believes the Dover Amendment gives preferential treatment to religion and is thus unconstitutional.

"One thing the Supreme Court's religion cases do say is that the state can't advocate religion," White says. "In this dispute, some people assume religion is good and thus the state should promote it. But the state can't advocate or endorse religion. . . . This statute endorses religion. It gives them a benefit hardly anyone else has."

Bennett is not worried about the Dover Amendment being declared unconstitutional because, he says, Belmont officials made their decision based on the city's own zoning laws, which date from 1925. Nevertheless, he supports the spirit of the amendment.

"Churches and schools do in fact perform a vital function in society," Bennett says. "They are best located where they are indeed accessible in a community. I'm glad my children can walk to school and to church."

Can these zoning disputes be resolved outside of court? Mack believes so. Mack would like to see community zoning laws changed so that if a neighborhood is home to any type of secular assembly--say a Masonic lodge, social club, union hall, or community center--churches should be permitted to site in that area too. And every community, he argues, should have at least one zone where churches can build freely without going through "the public hearing gauntlet."

Mack recommends that church leaders and members approach government officials early and forthrightly. They should strive to keep amicable relations with the neighborhood and, as much as possible, work with the people who live there.

The Chicago attorney realizes this is not always possible if the neighbors are deadset against the church moving in. Nevertheless, he says there are steps churches can take to avoid further antagonizing their neighbors. He told a story about one church whose members decided to go door-to-door in a neighborhood to make its case for locating there. But they made a misstep in choosing also to try to evangelize the people at the same time.

"It did not go over too well," Mack said. "It freaked the neighborhood out, and they said, 'We don't want these people in the neighborhood.' They would have been better off to do the evangelism a month after they got their permit."

At the same time, Mack adds that he's not fond of the idea of church leaders going door-to-door begging the neighbors for the right build a church. "It's offensive to me that churches should have to obtain public approval to exist," he says. "It's almost like a plebiscite: Should we allow these people to worship in their own building?"

Continues Mack, "Working the neighborhood can be fruitful. Other times it simply stirs up the opposition. I've seen it cut both ways."

But the search for a compromise won't be easy. Many believe laws such as the Dover Amendment are an iron heel, not a fair-minded attempt to resolve a sensitive issue in which both sides have good arguments. In the end, by giving churches a trump card, Massachusetts lawmakers may have only guaranteed more community strife and hardened both sides' positions.

The statute, Peirce says, "has been a bane to local communities. . . . Nobody wants to lose our churches. That's not the issue. It is the size of the structure that has driven the problem. This will not fit in with the neighborhood. This is huge."

And for the time being, that's where things stand in Belmont--a stalemate awaiting court resolution. A ruling in this one case, however, will do little to resolve the contentious issue of church zoning nationwide. That answer won't come, says Mack, until the U.S. Supreme Court decides to step in.

Mack says some High Court guidance is desperately needed. He faults the justices for taking religious freedom cases dealing with "esoteric facts," such as the right to use peyote or sacrifice animals, instead of issues such as zoning, which most churches grapple with. "Even federal judges ignore the Supreme Court rulings, because they are all just dicta, advisory statements," he says. "The Supreme Court needs to take a church zoning case and get itself into the real world."

Rob Boston is assistant editor of Church and State, published by Americans United for Separation of Church and State in Washington, D.C.

Article Author: Rob Boston