Zoning is often used as a tool to protect the haves from the have-nots. The haves are those who already have homes, schools, and places of worship in a community. The have-nots are those who come to a community in search of those things. Even when land is plentiful, any new housing, school, or place of worship will invariably be met with the common “not in my backyard” refrain. The haves may be all for affordable housing, places of worship, and new schools—just not near them. New housing, especially multi-family housing, is seen as a threat to the tranquility and traffic of existing single-family neighborhoods. New churches or private schools, both typically tax-exempt uses, are also seen as a threat to the municipal tax base. As zoning becomes more restrictive and exclusionary, the have-nots find it harder and harder to find affordable housing, places to meet for worship or to educate their children.
In 2000, Congress enacted the Religious Land Use & Institutionalized Persons Act (“RLUIPA”) in order to combat the nationwide problem of municipalities effectively zoning out new religious assemblies and schools. Congress found that many municipalities provided no zones wherein a new church or school could locate, while many others only allowed them into the community on a discretionary basis—requiring them to obtain a “special use permit” from zoning boards and city councils that are often overly responsive to neighborhood opposition and protective of the tax base. At Dalton & Tomich, we have successfully helped dozens of religious groups and schools across the country overcome restrictive land use regulations by asserting their rights under RLUIPA.
Against the trend of increasingly restrictive zoning regulation and in the interest of the have-nots, a few cities are now taking the “radical” step of making their zoning codes less restrictive. In December 2018, Minneapolis became the first major city to do away with single-family zoning. It appears that Portland is now poised to do the same. Both cities are seeking to address the problem of sky-rocketing housing prices, rent, and homelessness. In as much as many have seen their property values soar as a result of restrictive zoning and the scarcity it creates, many others have found it nearly impossible to find a home near their place of employment. By banning single-family zoning, Minneapolis will increase the supply of land available for multi-family housing and will, if the law of supply and demand has its way, see housing become more affordable.
Some even see the move as an effort to undo the systemic segregation of society. Unfortunately, there are many examples of municipalities using zoning to disadvantage minorities. Even today in some of our religious land use suits and zoning hearings, the race or religious beliefs of our clients play an impermissible role in the permitting process.
New religious assemblies and institutions stand to benefit from this move away from prioritizing the preservation of single-family neighborhoods. While churches and schools have historically been considered compatible with single family zones, many municipalities are still amending their codes to exclude them all together or permit them only through highly discretionary and political processes. Like affordable housing, the religious land use needs of a community are worth prioritizing over the often petty or overblown complaints of neighbors. But until municipalities start to roll back their restrictive land use regulations, the attorneys at Dalton Tomich stand ready to help religious assemblies and institutions overcome these barriers to entry.
