When zoning practices emerged in the early 1900’s, many city planners treated churches as residential uses. For years this zoning scheme was a natural fit for most communities. Without the convenience of cars or mass transit systems, church-goers typically worshiped within walking distance of their homes and needed a “church around the corner.” The church of the era, with ministries generally contained to Sunday morning services and with no loud music or traffic to offend neighboring homeowners, complement this need by fitting neatly “around the corner.”
Today, however, most communities find that churches no longer fit in residential neighborhoods. First, the tenor of American communities has changed with the influx of the automobile and the advent of one-stop shopping centers, among other twentieth century innovations. Americans no longer live in regional cocoons but will travel outside of their neighborhoods to work, shop, dine, and attend church. As a result, the need for a neighborhood church has substantially declined.
Second, multi-use churches of today do not always fit in residential zones. A typical homeowner, concerned about traffic congestion, parking dilemmas, and noise, will fight tooth and nail to prevent a multi-use church from locating next door or down the block. For example, at about twenty years of age we were able to thwart a homeowners’ group in Morton Grove, which sued the village and a Muslim mosque hoping to obtain a court-ordered injunction prohibiting the city from allowing the mosque to locate in their neighborhood. In 2023, the same facts would create, in my opinion, a more difficult battle.
Not only are homeowners unhappy about the arrangement, but residential neighborhoods are a bad fit for churches, too. The American church is reinventing itself—it’s bigger, it’s busier, it has more ministries and outreaches, and it needs lots of parking. Today’s churches seek property that will support these expanding uses, fall within their budgets, be accessible to their congregants, and be visible enough to draw new members “Affordable, Accessible, Visible.” Property fitting this description rarely exists in residential neighborhoods.
Consequently, many churches endure inadequate facilities. Older congregations already located in the residential areas and outgrowing their facilities cannot assemble the neighboring lots needed to expand their facilities, while emerging congregations, often immigrants, seeking new property cannot find any available land in the residential areas.
Churches with expanding ministries must then look outside of the residential zones to find property. They will frequently bypass “traditional” facilities and convert nontraditional venues, such as vacant warehouses, manufacturing facilities, K-Marts or grocery stores, to meet their property needs. Problems arise when the local zoning code does not permit churches in the districts where these buildings or other desired properties are located.
Churches find themselves in weak bargaining positions because the real estate transaction suddenly becomes contingent on zoning approval. Additionally, the sellers become frustrated with the length of time it takes to go through the zoning process and sometimes pull out of the deal or increase the price. Another result is that churches and local governments can quickly find themselves locking horns in an expensive and draining zoning battle.
Before most local governments understand the issues involved in particular transactions, they generally do not want churches to operate in these properties. Local governments to not want to forego real estate or sales tax revenues that a commercial or retail use of the property would generate. They are concerned with traffic congestion and parking. They do not want a church to interrupt retail or commercial corridors. With these concerns in mind, local governments often deny churches’ special use applications for these properties.
Churches across the U.S. denied special use status have successfully sued local governments, claiming that the zoning laws prevent them from worshipping in violation of various federal and state laws. The Religious Land Use and Institutionalized Persons Act (RLUIPA), enacted in 2000, strengthened many of these claims by dictating how a local government can regulate religious land use. In addition to RLUIPA, several federal constitutional provisions, such as the free exercise of religion clause and the equal protection clause, also limit how tightly local governments can regulate religious land use.
RLUIPA— and constitutional-based litigation—has already proven to be costly for several Illinois towns. We have successfully sued Chicago and dozens of other municipalities in and beyond because the villages violated the federal constitution, state law, and RLUIPA when they denied special use. When a municipality stood by its zoning code, arguing that their governmental interests in preserving a harmonious zoning scheme outweigh a church’s interests in worshipping at the properties, the courts often disagreed. These days, a city may pay upwards of $1,000,000 in their own legal fees and the legal fees and settlement costs of the church. All parties (except their attorneys!) would have been better off had the city been more proactive in assessing its zoning code compliance with religious land use law before denying zoning relief to the churches.
When the zoning issues between the church and local government reach the litigation state, the process becomes adversarial, expensive, and time-consuming Normally, neither the church nor the local government is eager to engage in litigation but would rather resolve the zoning issues diplomatically through non-litigious routes.
Some municipalities have discovered that the best approach to avoiding RLUIPA and constitutional-based liability is to develop a religious land use plan. Zoning authorities need to understand and accommodate the intricate planning issues, community concerns, and people needs involved in church zoning. However, Comprehensive Plans, designed to outline developmental goals and suggest future land use patterns, rarely address religious land use concerns. A local government can unwittingly expose itself to liability through its ignorance of these issues.
Additionally, homeowners would prefer churches abutting their neighborhoods to businesses because churches are less use-intensive than businesses. When real estate professionals are helping a church locate suitable property, they can approach property owners holding land in buffer zones as additional resources. Where these areas are not in zones where churches are permitted uses, real estate professionals can advocate that city officials consider the benefits of allowing churches into these areas and suggest they amend their zoning codes and/or maps to make churches permitted uses.
Contributed Article for the Illinois Real Estate Journal
