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Uneasy neighbors

Religious groups find cities less hospitable on zoning matters.

By Jane Lampman Staff writer of The Christian Science Monitor / September 21, 2000

Most Americans consider themselves religious, yet in many communities and counties across the country, houses of worship are no longer seen as desirable neighbors.

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In Los Angeles's Hancock Park neighborhood, Rabbi Chaim Rubin's small congregation of mostly elderly Orthodox Jews has been refused a permit to gather in a home for services; they were told that doing so would be a "detriment to the quality of life."

In Frederick, Md., as the county tries to control growth, the Islamic Society was recently denied access to water and sewer lines for a mosque on land where access had previously been granted to a baseball complex.

A United Methodist church in Portland, Ore., and a Baptist church in Richmond, Va., were pressured to curtail programs for the homeless, and told how many people they could feed. One zoning official set a limit, later rescinded, on the number of worshippers allowed at the Methodist church.

In affluent Belmont, Mass., local property owners are fighting the zoning board's decision allowing variances to the Church of Jesus Christ of Latter-day Saints for a 94,000-square-foot temple. The temple will open Oct. 1 without its traditional six spires or a board-approved 139-foot steeple. The case may end up in the Supreme Court.

While issues of building size and traffic are familiar local concerns, religious groups say the problems they confront today are diverse: from zoning codes that favor secular over religious uses, to discrimination against certain faiths, to exclusion of churches altogether from land-use plans.

And the problems arise more frequently. So much so, that the US Congress passed a new law this summer to protect religious institutions from land-use restrictions that excessively burden the exercise of religion.

But what faith groups see as essential to restore religious liberty, local governments and historic preservation groups see as an improper and unwarranted intrusion into local decisionmaking. The new bill, which President Clinton is expected to sign, highlights the tension between the right to assemble and worship freely and the authority of local jurisdictions to establish land-use rules that apply to everyone.

A compelling reason for restriction

The bill doesn't exempt churches from zoning regulations, but when religious groups show that the rules would create "a substantial burden," officials must show a compelling reason for doing so, and must do it in the least restrictive way. They must also treat religious applicants at least as well as they do secular ones.

"In the wake of the Supreme Court's 1990 decision lowering the Constitutional protection of 'free exercise' of religion, there are several problems in this realm," says Melissa Rogers, general counsel for the Baptist Joint Committee, but "this bill was geared toward the most pervasive ones." A coalition of 50 religious and civil rights groups worked for passage of The Religious Land Use and Institutionalized Persons Act. (The bill also deals with religious rights in prisons, hospitals, and group homes.)

Local governments and planning officials insist, however, that widespread discrimination has not been demonstrated. "We don't see it as a protection of religious freedom, but a preferential establishment of an exemption from general community standards," says Randy Arndt, spokesman for the National League of Cities. Larry Naake, executive director of the National Association of Counties, warned senators that the bill would require "expenditure of significant resources ... to defend against frivolous lawsuits."

Also, many religious buildings are among America's historic treasures, and leaders at The National Trust for Historic Preservation worry the bill will result in demolition of some now protected by landmark laws. It was in a Texas landmark case (City of Boerne v. Flores, 1997) that the US Supreme Court declared unconstitutional the 1993 Religious Freedom Restoration Act (RFRA).

When the city refused to give the Archbishop of San Antonio a permit to demolish all but the facade of a 1923 church, the church went to court under the RFRA. After the law was overturned, the church compromised with the city, allowing 80 percent of the church to remain, along with a new structure. Trust officials say the new law will encourage churches to rush to litigation, and cities may capitulate.

Ms. Rogers, though, says it has gone the other way since the Boerne decision. "We're facing the situation now where [cities] have been overzealous with religious groups. There needs to be some check on that authority."

Small religious groups most at risk