[Congressional Record Volume 146, Number 114 (Friday, September 22, 2000)]
[Extensions of Remarks]
[Pages E1564-E1567]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


    THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000

                                 ______
                                 

                           HON. HENRY J. HYDE

                              of illinois

                    in the house of representatives

                      Thursday, September 21, 2000

  Mr. HYDE. Mr. Speaker, tomorrow the President of the United States 
will sign into law the Religious Land Use and Institutionalized Persons 
Act, S. 2869. I would like to submit for the Record a document prepared 
by the Christian Legal Society describing zoning conflicts between 
churches and cities which have come to light since subcommittee 
hearings on the subject:

                         Recent Land-Use Cases

       ``In the last 10 years, zoning conflicts between churches 
     and cities have become a leading church-state issue. Disputes 
     have arisen over church soup kitchens or homeless shelters in 
     suburbs, expansion of church facilities, parking squeezes on 
     Sunday, breaches of noise ordinances or disagreements on what 
     kind of meetings the zoning permits. Growing churches that 
     seek new land to relocate often cannot win zoning approvals 
     in the face of public protest over traffic.'' Joyce Howard 
     Price, Portland church ordered to limit attendance, 
     Washington Times, February 18, 2000.


                     MONTGOMERY COUNTY, MD--8/16/00

       A couple in Montgomery County, Maryland, challenged in 
     federal court a zoning ordinance that allowed a Roman 
     Catholic girls' school to build on its property without 
     obtaining a special permit. In August 1999, a U.S. District 
     Judge ruled that the ordinance violated the Establishment 
     Clause, but on appeal a three-Judge panel of the 4th U.S. 
     Circuit Court of Appeals reversed the district court by a 2-1 
     vote, concluding in August 2000, that `` [t]he authorized, 
     and sometimes mandatory, accommodation of religion [by the 
     government] is a necessary aspect of the Establishment Clause 
     Jurisprudence because, without it, the government would find 
     itself effectively and unconstitutionally promoting the 
     absence of religion over its practice.'' The dissenting Judge 
     differentiated between regulations that influence or alter 
     programming and regulations that affect physical facilities.
       Sources: David Hudson, Land-Use Ordinance Doesn't Advance 
     Religion, Federal Appeals Panel Rules, The Freedom Forum 
     Online, August 16, 2000.


                      PALOS HEIGHTS, IL--8/10/2000

       On June 30, 2000, Chicago Public Radio's Jason DeRosa 
     reported that the Al Salam Mosque Foundation encountered 
     opposition from the city council of Palos Heights, Illinois, 
     when

[[Page E1565]]


       Sources: Pam Belluck, Intolerance and an Attempt to Make 
     Amends Unsettle a Chicago Suburb's Muslims,'' New York Times, 
     August 10, 2000. NPR Online, http://search.npr.org/cf/cmn/
 cmnpd01fm. cfm?PrgDate= 06/30/2000?PrgID=3, June 30, 2000.


                         BELMONT, MA--7/7/2000

       In Belmont, Massachusetts, a new Latter-day Saints (Mormon) 
     Temple has caused a great deal of controversy. The white, 
     69,000 sq. ft. building sits atop a hill, overlooking an 
     upscale neighborhood of single-family homes. Nearby residents 
     want the Temple demolished. In May 1999, a three-judge panel 
     of the federal appeals court in Boston rejected the 
     residents'challenge to the LDS Temple. The lawsuit challenged 
     as unconstitutional state and town laws that prevent town 
     officials from excluding religious uses of property from any 
     zoning area. Boyajian v. Gatzunis, 212 F.3d I (1st Cir. 
     2000). The residents claimed that the laws ``violate the 
     Establishment Clause of the First Amendment by favoring 
     religious uses of property without a secular purpose.'' Id. 
     at 3. The circuit held that the law prevents towns from 
     ``us[ing] zoning power to exercise their preferences as to 
     what kind of religious denominations they will welcome.'' 
     Martin v. Board of Appeals of the Town of Belmont, No. 97-
     2596, slip op. 27 (Super. Ct. Mass. Feb. 22, 2000). The court 
     allowed construction to proceed and the Temple to open for 
     worship services.
       Other actions over the Temple construction arc still 
     pending. Middlesex Superior Court Judge Elizabeth Fahey has 
     ruled that the proposed 139 ft. steeple for the Temple is not 
     essential: ``While a spire might have inspirational value and 
     may embody the Mormon value of ascendancy towards heaven, 
     that is not a matter of religious doctrine and is not in any 
     way related to the religious use of the temple.'' Id. at 13. 
     The LDS Church is currently appealing.
       Sources:


                        VACAVILLE, CA--6/25/2000

       A Seventh-day Adventist church in Vacaville, CA, was denied 
     a permit to locate studio and administrative offices for a 
     radio ministry in a mobile home on church property. The 
     actual broadcast would come from an existing tower in the 
     nearby hills, not from the mobile home. The permit has been 
     denied on the grounds that the radio ministry is not an 
     accessory use to an Adventist Church. In other words, the 
     county was given discretion to determine what constitutes a 
     legitimate ministry of a church. The California Court of 
     Appeals distinguished between manned and unmanned radio 
     towers and held in favor of Solano County.
       Sources: Telephone Interview with Alan J. Reinach, Esq., 
     Director, Department of Public Affairs and Religious Liberty, 
     Pacific Union Conference of Seventh-day Adventists (July 7, 
     2000). Pacific Union Conference of Seventh-day Adventists, 
     Department of Public Affairs and Religious Liberty, Church 
     State Newsflash: California Court Denies Christian Radio 
     Station the Right to Locate at Vacaville Seventh-day 
     Adventist Church, The Religious Liberty Newsflash and 
     Legislative Alerts, June 26, 2000.


                        EL CAJON, CA--5/14/2000

       El Cajon Seventh-day Adventist Church has for years 
     ministered to the homeless population in downtown San Diego. 
     Such social welfare is an integral part of Seventh-day 
     Adventist faith. When the church tried to relocate to a 
     suburban area, it faced opposition from suburban neighbors, 
     who feared that the church Would bring indigent people into 
     their neighborhood. The church's zoning permit was amended 
     with the following stipulation: the new facility cannot be 
     used to ``feed, clothe, or house individuals.'' The vague 
     language of this amendment (``individuals'' rather than 
     ``homeless individuals'') raises questions about the status 
     of more innocuous church activities that involve ``feeding,'' 
     such as church potlucks. The Pacific Union of Seventh-day 
     Adventists is interested in challenging the language of the 
     amendment.
       Sources: Telephone Interview with Alan J. Reinach, Esq., 
     Director, Department of Public Affairs and Religious Liberty, 
     Pacific Union Conference of Seventh-day Adventists (July 7, 
     2000). Pacific Union Conference of Seventh-day Adventists, 
     Department of Public Affairs and Religious Liberty, Church 
     State News flash: A Busy Week with Land Use Problems, The 
     Religious Liberty Newsflash and Legislative Alerts, May 14, 
     2000.


                      SAN FRANCISCO, CA--5/14/2000

       When the City of San Francisco recently proposed new 
     parking regulations, the Tabernacle Seventh-day Adventist 
     Church raised a cry for help. The parking regulations, which 
     restricted visitors to one-hour parking, 9 a.m. to 6 p.m., 
     Monday through Saturday, would have effectively closed down 
     the Church by making it impossible for congregation members 
     to park their cars during Saturday worship services. The 
     regulations raised constitutional questions in the eyes of 
     several faith groups, who pointed out that the regulations 
     accommodate the majority (Sunday worshipers) but inhibit the 
     religious exercise of minority groups who worship on other 
     days. The Church received a favorable response from a hearing 
     officer at City Hall, who granted their request to amend the 
     parking policy to Monday through Friday.
       Sources: Telephone Interview with Alan J. Reinach, Esq., 
     Director, Department of Public Affairs and Religious Liberty, 
     Pacific Union Conference of Seventh-day Adventists (July 7, 
     2000). Pacific Union Conference of Seventh-day Adventists, 
     Department of Public Affairs and Religious Liberty, Church 
     State News/Zash: A Busy Week with Land Use Problems, The 
     Religious Liberty Newsflash and Legislative Alerts, May 14, 
     2000.


                       SAN MARCOS, CA--5/10/2000

       At a lunch sponsored by the San Marcos Seventh-day 
     Adventist Church, approximately 30 non-Adventist pastors from 
     the local community were informed that the City is trying to 
     obtain hefty fees from the Adventist church as a condition of 
     granting the church a conditional use permit to build on a 
     3.4-acre property. The fees are based on what the city would 
     obtain in tax revenue if the property were used to build 
     single-family homes instead of a church (one acre of church 
     property=approx. 4 Equivalent Dwelling Units). The fees 
     imposed on the church amount to $133,000 up front and $5,000 
     per year, even though the congregation consists of only 75 
     people. This Situation does not bode well for the 30 non-
     Adventist pastors, some of whom wi11 be applying for building 
     project permits in the future.
       The only mention of churches in the Community Development 
     Ordinances is located in a traffic-impact table. Nowhere in 
     the city ordinances does it say that a church must be 
     assessed in the way the city has chosen to assess this 
     particular church. The Pacific Union of SDA believes
       Sources: Telephone Interview with Alan J. Reinach, Esq., 
     Director, Department of Public Affairs and Religious Liberty, 
     Pacific Union Conference of Seventh-day Adventists (July 7, 
     2000). Pacific Union Conference of Seventh-day Adventists, 
     Department of Public Affairs and Religious Liberty, Church 
     State Newsflash: A Busy Week with Land Use Problems, The 
     Religious Liberty Newsflash and Legislative Alerts, May 14, 
     2000.


                       GRAND HAVEN, MI--3/16/2000

       The Haven Shores Community Church, a member of the Reformed 
     Church in America, claims as its mission to ``worship and 
     glorify God by reaching out and serving the community.'' The 
     church aspires toward that goal by offering contemporary 
     forms of worship and educational and counseling programs for 
     youth and adults. Believing that ``a nontraditional 
     storefront ministry is necessary to provide the exposure and 
     character it requires to minister to people,'' the church 
     rented a storefront and sought a building permit. Things did 
     not, however, go as planned. The city and zoning board of 
     Grand Haven denied the church a building permit on the 
     grounds that the storefront is located in a business district 
     zoned for private clubs and schools, fraternal organizations, 
     concert halls, and funeral homes. The church hired the Becket 
     Fund for Religious Liberty to sue in March of 2000, on its 
     behalf, alleging religious discrimination. The Becket Fund's 
     complaint accused the city of ``punish[ing]'' the church for 
     asserting a nontraditional model of worship and outreach, and 
     of violating state and federal constitutions by 
     ``discriminating against religious use'' while ``permitting 
     equivalent, non-religious use.''
       Sources: Jeremy Learning, Church says Michigan zoning 
     policy subverts its religious liberties, First Amendment 
     Center, March 16, 2000.


                          APEX, NC--3/15/2000

       The Wall Street Journal reports that in many towns across 
     the rural south, downtown shopkeepers would prefer that 
     landlords rent to any type of business rather than a 
     storefront church. Shopkeepers consider storefront churches 
     an economic liability and an obstacle to the town's 
     revitalization plans. Since churches do not generate

[[Page E1566]]

     weekday traffic, do not add revenues, and do not pay taxes, 
     some shopkeepers support changes in zoning laws to prevent 
     landlords from renting to churches in downtown areas. City 
     officials in Apex, North Carolina, are not seeking to close 
     the town's two existing storefront churches, but they do want 
     to ban any new churches that might hinder their economic 
     revitalization plans. The lawyer retained by Apex churches 
     notes that city officials are overlooking the fact that 
     churches can turn indigents into people who contribute 
     economically to society.
       Sources: Lucinda Harper, Upscale Stores Craft Bans Against 
     Storfront Churches, The Wall Street Journal, March 15, 2000.


                       JACKSONVILLE, OR--3/7/2000

       The City of Jacksonville granted First Presbyterian Church 
     a permit to build a sanctuary and an education building on a 
     ten acre site only if the church met certain conditions. The 
     church would be required to close its buildings on Saturdays 
     and during certain weekday hours, would be forbidden to hold 
     weddings or funerals on Saturdays, and could not serve 
     alcohol on the premises. The City Council met to revise this 
     proposal after being warned that the wedding and funeral ban 
     could potentially be unconstitutional. The result of the 
     meeting was not a revision but a denial of the permit 
     altogether. The local Community reacted strongly to the 
     denial. While First Presbyterian pastor and elders considered 
     an appeal before the Land Use Board of Appeals, other clergy 
     and state politicians called for legislation to protect 
     religious organizations from intrusion by zoning boards.
       Sources: Oregon church loses battle for building permit, 
     The Associated Press, March 7, 2000.


                       LOS ANGELES, CA--2/25/2000

       Orthodox Jews must walk to services on the Sabbath because 
     their religion does not permit them to use cars. Etz Chaim is 
     a congregation of elderly and disabled Orthodox Jews in the 
     Hancock Park area of Los Angeles who have trouble walking 
     distances as short as half a mile. The members of Etz Chaim 
     sought a conditional use permit to establish a synagogue in 
     Hancock Park, an area zoned for single-family dwellings, 
     because their disabilities prevent them from walking to any 
     of the synagogues located in a nearby commercial zone. The 
     Hancock Park Homeowners Association complained that this 
     arrangement would hurt property values, and the permit was 
     denied. Based on the testimony of a neighbor who argued that 
     anyone ``should'' be able to walk to synagogues in the 
     commercial zone, the state court of appeal found that 
     alternative locations for prayer are available to Etz Chaim. 
     In February, The Washington Times reported that, 
     ``Congregation Etz Chaim--a home-based synagogue that served 
     many elderly and disabled members--was closed under a zoning 
     law that leading city officials refused to apply equally to 
     close a gay sex club in a residential area.''
       Sources: Electronic Letter from Susan S. Azad, Attorney for 
     Plaintiffs Etz Chaim, et. al., to Julie E. Khoury, Paralegal, 
     Christian Legal Society (Aug. 15, 2000) (on file with 
     Christian Legal Society). Michelle Malkin, No prayer on 
     zoning regulation, The Washington Times, February 25, 2000. 
     Order and Memorandum Opinion, Congregation Etz Chaim v. City 
     of Los Angeles, No. CV 97-5042 HLH(Ex) (C.D. Cal. June 1, 
     1998).


                       ST. PETERSBURG, FL--2/2000

       The Refuge is an inner-city church whose ministry includes 
     worship services, Bible studies, Bible-based counseling, 
     music concerts, a feeding program for the poor and homeless, 
     a crisis hotline, and Christian-perspective support groups 
     such as Alcoholics Anonymous and a group for those infected 
     with HIV. The City's zoning ordinance permits ``churches'' in 
     the zone in which the Refuge is located, and the Refuge's 
     certificate of occupancy indicates that it is a church.
       When neighborhood residents complained to zoning officials 
     about the character of people using the Refuge's services, 
     City zoning officials decided to label the Refuge a ``social 
     service agency,'' a type of establishment not permitted in 
     the Refuge's zoning district. In September of 1997, the City 
     ordered the Refuge to relocate. The Zoning Board of Appeals 
     upheld the zoning official's order. St. Petersburg attorney 
     Mark Kamleiter asked the Florida Circuit Court to review that 
     order and contacted the Christian Legal Society's Center for 
     Law and Religious Freedom. Working through the Western Center 
     for Law and Religious Freedom, Kamleiter and CLS Chief 
     Litigation Counsel Gregory Baylor filed an amended petition 
     for certiorari in the Florida Court of Appeals on June 1, 
     1998. Attorneys for the Refuge argued that, in assessing the 
     Refuge's activities, the City asked the wrong question. They 
     emphasized that whether or not those activities fall under 
     the definition of ``social service agency,'' what matters is 
     that the activities can be considered either primary or 
     accessory uses of a church. The court granted the petition 
     for certiorari on December 21, 1999, noting that ``The Refuge 
     is not doing anything not done, in one form or another, by 
     churches both in this and other areas, in the past and 
     present.'' The Refuge Pinellas, Inc. v. The City of St. 
     Petersburg, No. 97-8543 CI-88B, slip op. at 3 (Fla. Cir. Ct. 
     Dec. 21, 1999). In February of 2000, the district court of 
     appeals denied certiorari to the City.
       Sources: Michelle Malkin, No prayer on zoning regulation, 
     The Washington Times, February 25, 2000. The Refuge Pinellas, 
     Inc. v. The City of St. Petersburg, 755 So.2d 119 (Table) 
     (Fla. Dist. Ct. App. Feb. 18, 2000). The Refuge Pinellas, 
     Inc. v. The City of St. Petersburg, No. 97-8543 CI-88B (Fla. 
     Cir. Ct. Dec. 21, 1999).


                       GROVES CITY, TX--2/9/2000

       In trying to help the poor in Groves City, Texas, Pastor 
     Richard Hebert has encountered repeated opposition from those 
     who dislike the homeless his efforts would bring into their 
     neighborhoods. The pastor was first denied a permit to open a 
     boarding house for the homeless and drug-addicted in the 
     city's business district, was next denied a permit to open a 
     church with counseling and boarding, and was finally denied a 
     permit to open a regular church. In February of 2000, Pastor 
     Hebert filed suit claiming that the city's required operating 
     permit for churches is unconstitutional. He wants the city to 
     strike down the permit ordinance and to pay his attorney
       Sources: Texas judge halts move to shut down church, The 
     Associated Press, February 9, 2000.


                         EVANSTON, IL--2/9/2000

       An Evanston zoning code permits the Vineyard Christian 
     Fellowship's building to be used for ``cultural'' events such 
     as concerts and theatrical performances but prohibits 
     religious gatherings in the building. The church's pastor 
     cites the inconsistency of a policy that allows the church to 
     use its building for a Christmas pageant but not for a 
     Christmas Eve service. Vineyard, which has been seeking a 
     permanent location for its Sunday services since 1988, filed 
     suit, accusing the city of discriminating between religious 
     and non-religious assemblies. The complaint claims that the 
     city violated the church's constitutional rights to freedom 
     of speech, freedom of religion, and freedom of assembly, as 
     well as equal protection under the law, state zoning laws, 
     and the Illinois Religious Freedom Restoration Act (RFRA). In 
     answering the complaint, the city challenged the 
     constitutionality of the Illinois RFRA. The challenge 
     triggered intervention by the Illinois Attorney General's 
     office, who supports RFRA. The city removed the case to 
     federal court on February 9, 2000. Attorneys do not foresee 
     settlement, and a trial date has been set for mid-January of 
     2001.
       Sources: Telephone Interview with Mark Robert Sargis of 
     Mauck, Bellande & Cheely (August 30, 2000). Vineyard 
     Christian Fellowship of Evanston v. City of Evanston (N.D. 
     Ill. Feb. 9, 2000) (No. 00C0798). Mark Robert Sargis, Mauck, 
     Bellande & Cheely, Vineyard Church Re-Files Discrimination 
     Suit Against City of Evanston, Press Release, January 12, 
     2000.


                         DENVER, CO--12/22/1999

       According to The Associated Press, in August of 1999, a 
     ``Denver couple filed a federal lawsuit to challenge a city 
     order barring them from holding more than one prayer meeting 
     at their home each month.'' The couple's attorney argued that 
     the cease-and-desist order unconstitutionally distinguished 
     between religious and secular meetings. Despite assertions by 
     a zoning administrator that the order simply limited parking 
     problems and protected the neighborhood from disruption, the 
     couple's attorney pointed out that the order made no mention 
     of parking or noise violations. Attorneys also emphasized 
     that the city does not regulate parking on residential 
     streets during home meetings. In December 1999, the city 
     conceded that the order violated the Couple's First Amendment 
     rights. The couple and the city struck an agreement in which 
     both the lawsuit and the order were withdrawn, the city 
     promised to change zoning policies that single out religious 
     meetings in private homes, and the city paid the couple 
     $30,00 in attorney fees.
       Sources: Family Research Council, Denver Withdraws Cease & 
     Desist Order on Home Bible Study, Legal


                        ONALASKA, WI--12/17/1999

       The mayor of Onalaska filed complaints with the City 
     Planner against a Christian pastor and his wife who were 
     hosting a weekly home Bible study. The mayor expressed an 
     inability to understand why the pastor would invite five 
     college students to his home rather than holding the meetings 
     at church. The City Planner notified the pastor that he must 
     obtain a conditional use permit pursuant to a city ordinance 
     governing ``clubs, fraternities, lodges and meeting places of 
     a noncommercial nature.'' When the pastor tried to 
     distinguish his private residence from the types of 
     enterprises listed in the ordinance, the City Planner told 
     him that ``the regularity of the meeting . . . requires the 
     permit.'' After receiving a letter from a lawyer warning of a 
     potential lawsuit to protect the pastor's constitutional 
     rights, the City Planner decided not to require the permit 
     and told reporters that the city would consider revising the 
     ordinance.
       Sources: Jeremy Learning, City Withdraws Demand that Couple 
     Obtain Permit to Hold Bible Meetings, The First Amendment 
     Center, December 17, 1999.


                         FAIRFIELD, OH--9/7/99

       Clara M. Pepper was convicted of violating the Fairfield 
     Codified Ordinances (FCO) by operating a church in a 
     residential district and by erecting a sign on her property. 
     Pepper argued that Fairfield's attempt to regulate her use of 
     the property was an unconstitutional infringement upon the 
     free exercise

[[Page E1567]]

     of religion. The trial court found that although Pepper's 
     rights to practice and exercise her religion and to use and 
     enjoy her property for religious purposes are protected by 
     the Ohio and U.S. Constitutions, these rights are not 
     absolute and may be reasonably regulated. The Court found 
     that the FCO are not an unconstitutional exercise of police 
     power. The appellate court similarly upheld the ``minimal 
     requirements'' imposed on churches by the FCO.
       Sources: City of Fairfield v. Pepper, 1999 WL 699867 (Ohio 
     App. Sept. 9, 1999).


                       YOUNGSTOWN, OHIO--6/30/99

       Beatitude House is a nonprofit corporation operated by 
     Ursuline nuns who run job training and transitional housing 
     programs for homeless and abused women. When Beatitude House 
     tried to turn an old convent into transitional housing for 
     four homeless women, the Youngstown zoning board denied the 
     permit. The nuns appealed on the grounds that the proposed 
     use of the former convent is an accessory use, but the 
     appellate court held in favor of the zoning board and stated 
     that the Zoning Ordinance does not unconstitutionally 
     suppress the appellees' free exercise of religion.
       Sources: Henley v. City of Youngstown Board of Zoning 
     Appeals, 1999 WL 476087 (No. 97 CA 249) (Ohio App. June 30, 
     1999).
       This list of Recent Land-Use Cases was compiled for the 
     Congressional Record by the Center for Law and Religious 
     Freedom, A Division of Christian Legal Society, 4208 
     Evergreen Lane, Suite 222, Annandale, VA 22003, Julie E. 
     Khoury, Paralegal. The compilation was last modified on 
     September 1, 2000. Thank you to Susan S. Azad, Crystal M. 
     Roberts, Mark R. Sargis, and Alan J. Reinach for their 
     assistance.

     

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