Church Lawsuits Aim to Sidestep Local Zoning Rules

At least seven churches, synagogues and religious schools throughout the state have filed lawsuits against cities as part of a nationwide effort by religious groups to use a new federal law to overturn local zoning restrictions.

The groups are invoking the Religious Land Use and Institutionalized Persons Act, passed in 2000, to gain leverage in states where they say churches are routinely denied building permits in favor of projects that bring in tax revenue. The law prohibits any land use regulation that is a “substantial burden” on the practice of religion.

About 30 lawsuits have been filed nationwide under the law, and attorneys involved anticipate two dozen more by the end of next year.

It’s a trend that has alarmed many land-use experts.

“This is really far-reaching,” said James Kushner, visiting professor of law at USC, who offered an example of how the law, taken to its extreme, could be invoked.

“You can have a city like Irvine where rigorous architectural design review is part of the community, and along comes a religious group that wants to build a Day-Glo orange structure with a gold lame facade in the middle of a residential neighborhood, and they would be able to,” he said.

So-called mega-church proposals are behind many of the lawsuits. The projects are particularly challenging for city planners because they draw thousands of people a week and often require major infrastructure improvements. They are too big for residential neighborhoods, but they don’t bring in the sales tax revenue that cities look for in their commercial zones.

Church attorneys throughout the country cite the case of Cottonwood Christian Center in Cypress as an example of how they say cities can bully religious groups. Cypress officials want to toss the church off its land so a Costco can go in its place. The city is expected to vote May 28 to take the land by eminent domain.

Pastor Bayless Conley said the church filed its case after being backed into a corner. He said the 18-acre site the congregation bought for $14 million a few years ago is the only place in the area where their planned facility would fit. The church is operating with a 700-seat sanctuary in neighboring Los Alamitos, and a total of 4,000 people come to six services each weekend. Hundreds more are turned away.

“We had an extra 2,000 people visit us the weekend after Sept. 11,” he said. “I’ll guarantee you not one person ran to a Costco store. We never expected something like this to happen in a million years. It’s been a nightmare.”

The city is showing no signs of backing down. City officials say they warned the church not to buy the property--a claim the church denies--and that they have every right to redevelop one of the city’s busiest intersections in a way that will stimulate the local economy.

City Atty. Bill Wynder says the Constitution is on the side of Cypress. At the very least, he predicts that the courts will rule that the new law does not apply to a city’s ability to take land by eminent domain.

But he thinks they will go further than that.

“This is a law conferring a special benefit on religion,” he said. “It will be held a violation of church and state.” Wynder and others say discrimination is not the issue, because churches are already treated like everyone else in a state where being forced to sell land you own in a redevelopment zone is a fact of life.

Congress approved the act after the U.S. Supreme Court ruled that a similar law passed on civil rights grounds was an unconstitutional incursion on state and local authority. The court said the federal government failed to prove a pattern of discrimination. Congress passed the new version not as a civil rights mandate but as a condition cities must satisfy to receive federal funds.

The courts are now determining whether the new law is legal, and if so, what exactly constitutes a “substantial burden” to religious groups. Experts anticipate that it will take another U.S. Supreme Court decision to sort out the matter--and that could be years away.

Attorneys who have filed cases say they are only trying to get churches’ rights equal to other landowners.

“California has a reputation of being one of the most discriminatory places in terms of planning for churches,” said Brad Dacus, president of the Pacific Justice Institute, a Sacramento nonprofit that has filed several lawsuits on behalf of West Coast churches. “This law simply makes sure local governments do not prevent a church from living and growing unless there are legitimate health and safety concerns.”

In Los Angeles, a small Orthodox Jewish congregation invoked the law after the city refused to let its members convert a house in a busy residential neighborhood into a synagogue. The congregation argued in court that the religion required members to walk to services on the Sabbath, so a synagogue was needed in the neighborhood.

A judge ordered the case into settlement negotiations, and the synagogue was ultimately approved. Susan Azad, an attorney for the congregation, said the new law “made our case for us.”

A lawsuit filed under the act by Foothill Christian Ministries against El Cajon was also recently settled, with churches winning the right to locate in commercial areas without having to fight for special permits. The suit was filed after the ministry was told it could not build a sanctuary to seat 2,000 people, a day-care center and gym in a largely vacant mall pegged for redevelopment.

A few district court judges have ruled that the law does, indeed, stop short of giving religious groups freedom to ignore zoning. A federal district court judge upheld San Jose’s refusal to allow a Christian college to convert a hospital into a campus, finding that the decision did not place a substantial burden on the free exercise of religion.

The American Planning Assn., which lobbied against the act, is now scouring the dockets for an ideal test case to join in the hopes of getting the law stricken down in the courts.

“No one has an absolute right to use property the way they choose,” said Vivian Khan, an Oakland planning consultant and member of the association’s national legislative committee. “That is what land-use regulation is all about.”