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Know the West

The Promised Land?

Churches use a federal law to trample local land-use rules


When the Rocky Mountain Christian Church opened its doors in Niwot, Colo., in 1984, only a few families attended services. Over the years, however, the small religious institution has mushroomed into a megachurch, with over 2,000 members along Colorado's rapidly growing Front Range. The church has added new services and opened a school, and its facilities now exceed 100,000 square feet. 

The church is located in Boulder County, which, like its namesake city, is known for its relatively strong land-use policies. Boulder's sprawl runs up against a ring of dedicated open space, and agricultural buffer zones keep the rural character somewhat intact. The Rocky Mountain Christian Church's 55-acre site is located in one such buffer zone, and for the past 20-some years the county has deemed the church compatible with the zone, granting it five approvals to expand. Last year, the church - now about the size of a small Wal-Mart - tried for a sixth expansion, seeking to double its size to 200,000 square feet. But a church that big, the county ruled, would destroy the pastoral atmosphere. "Everybody came to the point of deciding that this was too much," says Graham Billingsley, Boulder County Land Use Department director. So the county turned the church down. 

The church, however, and its own team of lawyers specializing in land-use litigation, responded by suing the county under a little-known but powerful federal law: The Religious Land Use and Institutionalized Persons Act. For mega-churches across the country, this law, passed by Congress in 2000, could become a battering ram against zoning and land-use laws. 

The law, known as RLUIPA, was initially intended to prevent local governments from using land-use regulations to discriminate against religious practice. A town that doesn't want Muslims, for example, might use architectural guidelines to keep a mosque from being built. The act guards against such discrimination by prohibiting local governments from imposing land-use regulations that place a "substantial burden" on religious institutions without a demonstrable "compelling interest." According to Kevin Hasson, president of the Washington, D.C.-based Becket Fund for Religious Liberty, the law has brought clarity and fair play. "Churches don't have to be behind the eight ball like they used to be," Hasson says. "They get to play equally with developers." 

Churches around the country, however, have taken the law a step further, using it to force cities and counties to allow them to build facilities where land-use laws might otherwise prohibit it. "There has been a dramatic increase in court cases challenging land-use determinations," notes Marci Hamilton, a church-state scholar and visiting professor of public affairs at Princeton University. "RLUIPA has a heavy impact on residential neighborhoods." Take Scottsdale, Ariz., where the city initially denied a church's request to build a school in a residential area. The church sued under RLUIPA, and Scottsdale, worried about a lengthy, costly court battle, buckled and allowed the school to be built. 

The law also allows religious institutions that challenge local zoning laws in court to recoup their attorneys' fees from local governments if they win. As a result, those governments can be quick to settle with churches, even at the expense of their own zoning regulations. 

"It has been effective for churches to use RLUIPA to bully local governments into settling where there was no violation, no reason to settle, and no discriminatory motive, and the community had a compelling interest in making the decision they made," says Lora Lucero, a staff attorney with the American Planning Association and the editor of an upcoming book on RLUIPA. 

In the case of Boulder County vs. Rocky Mountain Christian Church, the "compelling interest" at stake is the preservation of rural land use. To the county, approving the church expansion would be inconsistent with its long-standing policy of preserving significant agricultural lands. "We are not treating this church any differently than anyone else. We deny it because it is just too big," says Billingsley. "If you start allowing significant urban uses, you can no longer leave the city and feel like you are in the country. The sense of place, the magnificent views, all of that goes away." 

The church, however, maintains that the county's denial has placed a significant burden on religious exercise, free speech and assembly, forcing it to cut sermon time and turn away members because of space constraints. According to Thomas Macdonald of the law firm Otten Johnson, which represents the church, the county is in violation of the law "by enforcing regulations in a manner that imposes a substantial burden upon the religious exercise." Generally, churches have dismissed open-space preservation as a mere aesthetic concern that does not stand in the face of higher-order religious rights. "The argument of preserving open space doesn't rise to the level that the courts would require for a compelling governmental interest," says Macdonald. 

However, a recent RLUIPA case in California may indicate otherwise. This year, a federal jury ruled that Alameda County did not discriminate on religious grounds when it denied the Redwood Christian schools' application to build a campus on rural land near Castro Valley. The county's decision was driven by the need to protect the area's rural character and control the impact of noise and traffic. Even though the decision is currently on appeal, Hamilton considers this an important case. "This shows that open space is not necessarily going to lose," she says. 

In the meantime, the Boulder County case is scheduled for trial in November 2008. A church victory could spur a new wave of religious land-use requests across the country. "If we lose this case," Billingsley says, "this means that the federal government steps in and says that local decisions cannot be made." Which would mean that, when it comes to land-use decisions, churches not only have God on their side: They also have federal law. 


The author is a freelance writer and photographer based in Vancouver, British Columbia, who specializes in cities and the environment.