For sixteen years, I have been privileged to fight for the land use rights and civil liberties of religious institutions across the country. I have represented churches, synagogues, mosques, religious schools, meditation centers, and homeless shelters. As an attorney, I enjoy nothing more than to attend the first service after we secure our client’s right to worship at a property, or keep their doors open to the homeless, or expand their school. In TED-talk parlance, this is my “why.” And a bit of personal background will explain why.
When I was young, my family attended a church that needed a place to worship. The church was growing and teeming with children, my siblings and I among them. We were looking for a building that could not only accommodate Sunday services but also a Christian school during the week.
The congregation’s prayers were answered when we came across a former grade school in Rockford, Illinois. Situated in a residential neighborhood and adjacent to a large park, the 12-acre property was ideal. The building had ample assembly space, plenty of classrooms, bathrooms, and offices. So, after the School District turned down another bidder’s $50,000 offer, the church pooled its resources, offered $450,000, and acquired the property.
On the same day the church closed on the property, it applied for zoning approval. Under the County’s zoning code, a church and school were permitted at the property provided a special use permit was approved. Unfortunately, because the school had been vacant for seven years, the church needed to reestablish the right to use the property even for school purposes. But what could be a more appropriate use of a former school building than a new school run by a church that would also use the gym for services on Sunday? Because the County had recently approved a special use permit to allow the property to be used as a library, the Church expected a quick and easy zoning process.
Unfortunately, obtaining zoning approval was anything but easy. Several neighbors had grown accustomed to living next to an unused and quiet school building. They believed they were entitled to keep it that way. And they were willing to go to great lengths to keep this new and unfamiliar church from disturbing their peace. Even after the Planning Committee recommended approval of the special use permit, certain neighbors continued their opposition and ultimately convinced the Zoning Board of Appeals (ZBA) to deny the permit. They cited the typical objections religious groups still face across the country—decreased property values and increased traffic. And when the Church appealed the ZBA’s denial to the County Board, it lost by a vote of 13-12.
Because this occurred in the early 1980’s, the Church could not really count on federal law to protect its religious land use rights. Zoning matters were not seen as being major issues of constitutional concern. And there were no federal statutes like the Religious Land Use and Institutionalized Persons Act of 2000 to protect religious groups from discrimination in the land use context. So, the church took its appeal to state court where it faced an uphill battle.
The Church asked the court to declare that the denial of the special use permit was arbitrary, capricious, and unreasonable. Any zoning attorney will tell you that prevailing on such a claim is exceedingly difficult and rarely happens. So it is not surprising that the Church lost before the trial court. According to the church’s attorney John Mauck (who would later hire me to my first job out of law school), the trial judge announced his decision against the Church along with words to the effect that “We’re not going to have any ten-story prayer towers in Rockford!” Because no such prayer tower had been discussed, let alone proposed, the comment appeared to be a dig at the church’s religious affiliation.
But the Church kept believing that this property was the answer to its prayers and appealed. After more litigation and briefing, the Court of Appeals, on New Year’s Eve Day in 1986, reversed the trial court and ordered the County to issue the permit. Fam. Christian Fellowship v. Winnebago Cnty., 151 Ill. App. 3d 616 (1986). The Church had persevered and overcome the long odds. In the court’s words, the reasons upon which the County had relied were insufficient to justify the use of its “police power to limit the right of freedom of religion.” Id.
After nearly two years of hearings and litigation, the Church was finally free to use its building. And the case would later be used, along with others, to explain why a federal law was necessary to protect the freedom of religion in the land use and zoning context. A unanimous Congress enacted RLUIPA in 2000, and since then, thousands of religious groups across the country and faith spectrum have benefited from RLUIPA’s protections. The ripple effect also continues out to every individual member, every homeless person served, and every student taught. If you can’t build it, they can’t come.
While RLUIPA has benefited many, far too many religious institutions have no idea the law even exists. They are missing out on the opportunities and protections RLUIPA affords. If your religious assembly or institution wants to better understand those opportunities and protections, please contact us.
