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Zoning as a Threat to Religious Liberty

If you take for granted your attendance at the church on the corner, it may be a good time to stop. You are about to be introduced to what many believe has become the worst threat to religious liberty in America: local zoning laws.

In theory, zoning laws sound reasonable and those who back zoning regulations often have good intentions. However, the reality is that zoning controls are turning property rights, the freedom of assembly and the freedom of religion into mere concepts that can only be exercised at the whim of government officials.

Fairfax County, Virginia, is a case in point. “Reasonable” sounding zoning regulations have gotten so out of control in Fairfax that many congregations cannot build new sanctuaries or expand old ones. Other churches which are granted permission to build often spend hundreds of thousands of dollars and wait years to get through the process.

Members of Christian Fellowship, a non-denominational church, recently voted to sell their sanctuary, pack up and move out of town after spending 10 years fighting the local zoning regulators.

When the church was founded in 1977, they had little trouble obtaining zoning approval. However, by 1983, when the congregation wanted to expand, things had changed. Zoning officials repeatedly refused to grant them “permission” to expand on their 12-acre lot.

As a result of that denial, the church purchased a huge tract of land along a four-lane highway in hopes of expanding. Again, the 2,000 member congregation was denied the right to use their property. According to the zoning officials, the new building would cause a “disruption in the community” and would “increase traffic.”

“One zoning board member simply stated that we don’t need churches this large in Fairfax County,” said the church’s pastor, James Ahlemann. “We were shocked and dismayed. Little could we have imagined that a 76-acre site in Fairfax County would not be large enough to build a church building to accommodate our congregation.”

Northern Virginia based attorney, Neil Markva, who has followed this issue for many years, is among those who have become concerned about this increase in government control. “I maintain that the construction of a building for the purpose of holding religious ceremonies is a free expression of worship. This business about traffic patterns and so on is nonsense. The only reason a government, under our system, is supposed to have any right to control anybody in what they are doing with their land and how they are using it, is if it constitutes a public nuisance. That’s the whole basis of the zoning laws, but that’s not what they are doing. The zoning laws have been used to bring about total control and regulation.” Markva added that, “Zoning laws are being used to basically establish a Marxist state. The ‘planners’ now use zoning laws to control every aspect of our society which is a far cry from the original purpose.”

Another church, Fairfax Covenant, a 900-member Charismatic congregation, broke ground in 1993 but only after Pastor Bennie Phillips fought with the local zoning board rigorously for nine years.

The church submitted a request to build a sanctuary in 1984, but the plan was rejected because of “community opposition.” Church members then set their sights on building a sanctuary in an 18-acre parcel they had obtained. Their plans were rejected six times.

“We purchased our land in 1986,” said Phillips. “We broke ground in June. Most of what we have been doing since 1986 has been hassling with zoning. It’s been a real battle.” Fees for preparation and legal services have cost the church $300 thousand, he noted.

The Fairfax County Board of Zoning cited typical reasons for denying Fairfax Covenant’s request: too much traffic and ostensible environment problems. Said Phillips: “They talked about soil erosion; that’s pure nonsense. We are seven miles from the Occoquan River yet they were talking about soil erosion that would affect the Occoquan.”

Other zoning officials cited even more arbitrary reasons for denying the church permission to build. Phillips noted that “After seeing our proposal for a 1,500 seat auditorium, one board member said right in the public hearing, ‘Why do you want to be so big. For churches to really do what they are supposed to do, there shouldn’t be more than 350 people.’”

Phillips noted “We’ve been caught up in some form of dialogue with a government agency every week since 1984. It begins to wear on you, and the expense becomes great. This was a very frustrating experience.”

The fact that a zoning official can declare right in a public hearing with a straight face that churches shouldn’t be larger than 350 people is a frightening indication of just how far zoning has come.

At the heart of many of these zoning battles is what is known as a “special exception.” Zoning officials in numerous localities across the country have a system in place where churches must get “special permission” or a “special exception” to exist or operate. The premise is that no congregation has a “right” to gather for worship or build a sanctuary. The government on a case by case basis decides if they will extend this special permission to the congregation in question. In areas such as Fairfax County, Virginia, this “special exception” is becoming increasingly harder to get and is becoming far more costly.

While some localities have narrow zones where churches have a “right” to exist without special permission, others have no areas at all. Chicago-based attorney, John W. Mauck, who has been defending churches in zoning conflicts for several years, sued the town of Bethel, Connecticut on behalf of Grace Community Church, a 300-member congregation that was denied permission to build a sanctuary.

Theaters, community centers and funeral homes have zones in Bethel where they are permitted, but churches don’t, explained Mauck. There is no permit required for people who wish to meet for social, business, recreational or political purposes, he said, “but if you want to worship Jesus you need a license - a special exception. That is religious discrimination.”

Mauck estimated that Grace Community Church accumulated $1 million in increased costs as a result of its five-year zoning clash. A trial court judge ruled that Bethel had to allow the church to build but did not allow the church to collect damages. On appeal, the Connecticut Appellate Court agreed with the trial courts ruling regarding monetary compensation. Mauck is currently appealing the case to the United States Supreme Court.

Pastors feel there are various reasons they become a target of zoning officials. Some believe zoning has simply become a government bureaucracy out of control but others are confident they are being discriminated against.

After a 4-year zoning battle over petty code “violations,” zoning officials in Evendale, Ohio locked the members of Landmark Baptist Temple out of their building. The church’s pastor, Reverend John Rawlings contends the reason for the zoning clash was clear. “There are people in almost every community who hate God, hate the Bible and hate churches, especially churches with active ministries. That’s what we’re having to contend with.” Rawlings added, “Every [zoning] situation is somewhat different but there is a pattern in this country of God-hating people. That is the spirit of the age we live in. We have to be willing to battle these things.”

Pastor James Ahlemann of the Christian Fellowship Church in Northern Virginia says bluntly, “I don’t have any question in my mind that we have been a target of Fairfax County’s opposition because of our strong evangelical message in the community.”

Such interference and strict controls on religious freedom have not hit every area of the country but the current trend indicates the problem is spreading.

Houston, Texas, made national news in November of 1993 when voters rejected zoning control by a 2% margin. The Houston Property Rights Association and an array of local pastors came out to vigorously fight the zoning measure. Houston is considered the largest city in America without zoning.

With all the difficulty churchgoers are having getting through zoning regulations and meeting the costs, one might assume that they can at least have the assurance that they can meet with their fellow believers in their homes. Unfortunately, however, even home worship is no longer considered sacred and is coming under increased attack by zoning controls.

For example, the Prince George County Council in Maryland recently enacted a law which requires those meeting Sunday morning for worship in their homes undergo an extensive zoning process. Home worshipers would be required to undergo traffic and noise studies that were projected to take one year and cost up to $10,000.

After an uproar by local Christians, the council eventually scaled back some of the severity of the law but nonetheless left new regulations intact to control home worship services. Pastor Vandy Kennedy of Walker Mill Baptist Church in Capitol Heights, Maryland called the new legislation “a wake up call for all churches.”

Some congregations that are targeted by zoning officials sense a hostility towards the fact that they are tax-exempt institutions. They see the “conditions” and public “improvements” which zoning officials demand when they try to expand as a back door way to tax the churches. The case of Burke Community Church in Northern Virginia serves as an example.

The congregation at Burke Community was tired of cramming all their different Bible study groups into one large room with only thin partitions to separate them. They decided to solve the problem by bringing in three modular trailers for Bible studies. It sounded simple enough at first but they soon learned that the zoning officials economic demands must first be met.

Pastor Paul Hansen explained, “We had to go through very extensive negotiations with the county. By their definition they were standard negotiations but it took a number of years. The first thing they wanted us to do is widen a road an entire lane that we don’t even front. It probably would have cost a quarter of a million dollars. We felt it was ridiculous especially in light of the fact that the county will only give permission for the modulars for five years at a time, then you go through the process all over again.” Bear in mind that there was no projected increase in traffic. It was a simple matter of finding a way of separating the Sunday school groups.

While the church eventually, after years of effort, had the road widening demand lifted, many other costly “improvements” had to be made. For example, the church was forced to put in street lights along the front of the church. The pastor pointed out that there is no relationship between morning, daylight Sunday school and lighting the roadway. He noted that “It’s a hidden way to tax the churches, to get money out of them.”

Those who have not been exposed to a zoning battle often view zoning merely as a way of keeping a handle on broad issues for the “public good.” Zoning, however, is no longer confined to big issues but has grown into a bureaucracy which seeks to micro-manage the private sector including the religious community. In Vienna, Virginia, the Fairfax Christian School was told they could not conduct classes in the sanctuary of the Vienna Assembly of God church because, according to zoning officials, “a sanctuary is not a proper educational environment.” Nearby, Fairfax County has been front page news lately over their efforts to enforce a zoning law which requires residents’ grass to be cut at a certain height. In California, government officials closed down the Magalia Community Church’s annual thanksgiving dinner because the church was not equipped with a commercial kitchen.

The fact that zoning officials have come to the point of concerning themselves with grass height and turkey dinners would almost seem comical were it not for the fact that such micro-management is placing severe burdens on churches and other ministries. At best, it diverts funds that could go toward important ministries and those in need. Pastors also note that the zoning process along with the costs involved in and of itself hampers churches from starting up and expanding.

The case of Christian Fellowship Church reviewed earlier should serve as a warning signal about the dangerous path zoning is taking. When a congregation has to sell their sanctuary, pack up and leave town because a local government decides it doesn’t “need churches this large” in the area, we all need to be concerned. Our country still prides itself on religious tolerance and the right to worship freely. However, if zoning laws go unchecked as they stand today, the free exercise of religion as we know it, will be a thing of the past.