Wednesday, April 4, 2012
Smart Growth and Zoning Laws--Changing the Way We Worship--Part II
This weekend, tens of millions of Americans will attend Easter and Passover services across the U.S. Many of the worshippers will do so without realizing that their ability to meet together in a building of their choice to worship as they please is under immediate threat.
I started this two part series with a post last week about how New Urbanism and zoning laws across the U.S. are challenging the ability of individual Americans to meet at home with other like-minded fellow citizens for worship, Bible study and prayer. Today I am finishing the series with a look at how we may be in the process of losing our right to meet for religious expression in any setting.
Few Americans seem to understand that the very existence of churches of all denominations is being threatened. Last year saw a record number of church foreclosures across the U.S., and that trend is expected to continue this year. Interestingly, many of the churches were not foreclosed on because they could not make the payments. Rather, many of the foreclosures happened because the church notes ballooned and the churches could not get their financing renewed and could not obtain new financing. Part of this phenomenon is a result of the overall drop in real estate values across the nation. During the boom years of 2006 and 2007 many churches expanded--unfortunately now the values of these renovated buildings have dropped off to little more than the balance of the note owed. Banks, who are finding themselves increasingly under pressure from regulators to clean up their balance sheets, do not want to extend the terms of these loans, which often balloon after five years, and so they call the note due and demand that the church pay the entire balance remaining on the loan. If the church is unable to come up with the money, the bank is completely within its legal rights to foreclose.
The loss of these facilities is particularly important to religious freedom, because typically existing buildings are grandfathered in under new zoning laws, but if the building is sold or changes ownership, or is damaged and has to be rebuilt, the new zoning ordinances apply. And many of these are not favorable to houses of worship.
In the U.S. we have been accustomed to enormous freedom of religion. Traditionally, if something happens to our church, we find a new one. Even if we belong to a tiny, minority faith population, if there are enough of us to be able to rent a facility, we can meet together. Sixteen years ago, I had the privilege of attending a Passover Seder led by a Messianic Jewish group in El Paso, Texas. The experience was fascinating, and one I will never forget. Although the regular congregation for this group was quite small--about 30 members, they were able to meet in a small building because together they were able to pay the rent to do so. But in the brave new world of New Urbanism, city planners decide where we can meet and when.
In Holly Springs, Mississippi, for example, Opulent Life Church, an African-American church with a congregation of about 20-25 people, has been denied the right to meet in a building it leased downtown. The church leased the building and then began working to get the permit, but the permit request was tabled by the Planning Commissioner because Holly Springs has an ordinance that requires that 60% of the people in the downtown area must approve the new house of worship before it can be allowed to relocate. Additionally, the mayor and a board of advisors must approve the request prior to the permit being issued. Liberty Institute took the church's case and sued in District Court for an injunction against the ordinance on the grounds that this ordinance does not apply to businesses or homes, but only to religious institutions. The District Court ruled against the church on the grounds that because the church is not meeting the capacity of its current building, the church is not suffering any harm through the denial of the right to move downtown. Liberty Institute has appealed the decision to the U.S. Court of Appeals.
The Holly Springs case is just the most recent as communities decide how big the churches can be and where they can be located. In Leon Valley, just outside of San Antonio, a small evangelical church has filed a lawsuit against the city because new zoning laws prohibit the church from using its building for Sunday morning worship services. The zoning board has ruled that churches cannot be located in retail zones. In Rolling Hills Estates, California, planning officials denied a permit to a church because the city banned churches from commercial areas. In some cases, churches are denied permits because they could be too close to businesses that sell alcohol and that would decrease the city's potential revenue from alcohol sales.
One major goal of the new zoning laws is to create density and to help cities generate revenue. Churches, which are tax-exempt, are not seen as revenue generators. And churches who participate in social welfare programs, such as feeding the homeless, are often seen as participating in activities that should be the responsibility of the government. In Houston, Texas, a church that had been feeding the homeless for over a year had to terminate its program when the city began to require permits that the church could not acquire. Homeless, indigent people are not part of the image that cities want, and churches who offer programs to help these people are often viewed as contributors to the problem.
New Urbanism, with its heavy emphasis on public transportation and mass transit, is often at odds with church requirements for parking. Even in cities that specifically include houses of worship in their master plan, the requirements for land can be onerous. Within urban areas, requirements that a church own at least a two acre tract of land or a 10 acre tract to accommodate a church with a gym can make it almost impossible for congregations to acquire a building.
But even when congregations are willing to go outside of the city limits, they may not find a place to worship out of the close watch of the planners. In 2002, Mollala Christian Church in Clackamas County, Oregon, bought farmland on the outskirts of town. The church went to work getting permits to build only to be told by the county planning director that churches are not allowed in the "Exclusive Farm Zone" which is within three miles of the Urban Growth Boundary. Urban Growth Boundaries are designed to keep development within the confines of certain areas--on the other side of the boundary no development is allowed. The church appealed the decision but the zoning director's decision was upheld because the soil was "high value farm land" and the state had a "compelling government interest" in ensuring that the land remained agricultural. Eventually, the Becket Fund for Religious Liberty took the church's case and successfully argued that since the county was allowing construction of other types of structures in the Exclusive Farm Zone, including "community centers, wedding facilities, golf courses, wineries and farm stands" they were clearly discriminating against the church. County Commissioners agreed in a 2-1 vote.
Although the church was ultimately victorious in this case, we must remember that much of the zoning, Smart Growth and New Urbanism is coming to us from Oregon, and we can expect to see many more laws that mirror theirs. Former Yale Professor Randal O'Toole, now with the CATO institute, has written and spoken extensively on the subject of New Urbanism. In his book The Best Laid Plans-How Government Planning Harms Your Quality of Life, Your Pocketbook and Your Future, O'Toole, writes that in Oregon a person cannot build his own home on his own land in the areas designated rural--95% of the state--unless he owns "at least 160 acres, actually farm(ed) the land and earned $40,000 to $80,000...farming it in two of the past three years." With restrictions like these in place, planning and zoning boards are not going to be open to tax exempt churches which build huge buildings, use air conditioning and heating, and require large amounts of parking.
All of these restrictions are going to profoundly affect the way we practice our faith in the U.S. If churches are not allowed to move from their existing buildings, they cannot hope to grow. As our society morphs into a society of high density, urban lifestyles where people rely on public transportation rather than individual cars, their ability to choose or change houses of worship will be dramatically altered. Even the operation of some churches will be affected. In the Church of Jesus Christ of Latter Day Saints (Mormons) for instance, the bishop decides how big each house of worship (ward) should be. When he decides that the ward is too full, he assigns part of the families to a different ward. But if families do not have transportation and must rely on bus routes, how are they going to be able to comply with the bishop's orders?
I also think of other small faith populations. Not far from my office is a synagogue. If I am working on Saturdays, I can see the Jewish families walking home after services; I have been told that Orthodox Jewish people do not drive on the Sabbath since driving is considered work. As we convert to a high density, Smart Growth plan, I wonder what will happen if the new planning officials decide that there are not enough Jews in our community to deserve a synagogue within walking distance of their homes. Granted, we have a very small Jewish community here, but shouldn't they have the right to have a house of worship that is conveniently located so that they can fulfill the Torah requirements of not working (driving) on the Sabbath?
One of the problems with Smart Growth and New Urbanism is that it allows a handful of zoning officials to determine the standard of living for the entire community. El Paso is predominately Catholic, but our community also contains Protestants of all major denominations, non denominational evangelicals, Jews, Muslims, and Hindus. Who decides which houses of worship will be available and how many of each will be permitted in any given area? Who determines whether two Catholic churches is enough in a given area? Who decides that the group of ten evangelicals who want to meet on Sunday mornings is too small to justify being allowed a meeting place? Who decides that the mega church is too big and is taking up parking and resources that should be converted to green space? Church Architect Randy Bright has written extensively on the dangers that New Urbanism pose to religious liberty. He writes, "ultimately, this boils down to matter of who will control what goes into our cities, and as the planners almost universally accept the notion that human beings belong only in urban areas, and that churces don't have a place in urban areas, church facilities will eventually disappear from the urban environment--unless we are willing to fight to keep them there."
This weekend, if you choose to attend a religious service for either Passover or Easter, look at the building where you are meeting and think about the impact on your life if you could no longer meet together for worship. A client of mine from India who was born into a Hindu family, educated at Presbyterian schools, and is now an atheist, recently expressed to me that one of America's greatest strengths is the right of every person "to believe in whatever he or she wants to--or to believe in nothing at all." I agree with him, but I would take his statement one step further--it is not just our right to believe what we choose but to practice those beliefs as we choose, to share our faith in community with others and to teach our beliefs to our children. If we don't stand up for that freedom, we will lose it.
Alexandra Swann's new novel, The Planner, about an out of control, environmentally-driven government is available on Kindle and in paperback. She is also the author of No Regrets: How Homeschooling Earned me a Master's Degree at Age Sixteen. For more information, visit her website at Frontier 2000