Daily Development for
Monday, August 26, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ZONING AND LAND USE; RELIGIOUS FREEDOM RESTORATION ACT: City zoning ordinance may not ban use of church premises for a homeless shelter when such use constitutes a religious practices.

The Jesus Center v. Farmington Hills Zoning Board of Appeals, 544 N.W.2d 698 (Mich. App. 1996)

A church had operated at the same location for many years. Recently, it determined that its religious missions included provided shelter for homeless persons, and it opened up a shelter at its church. Homeless persons were bussed to the location from poor neighborhoods in the region.

The church claimed that it only operated the facility on weekends and that it strictly monitored the activities of its homeless guests, keeping them on premises and checking their record for violence and drug useage. The court accepted the findings of fact of the zoning appeals board concerning the impact of this activity on the neighborhood. They paint a relatively harsh picture:

"The Zoning Board apparently made factual determinations that the shelter was operating on a full-time basis, not just during winter weeekends, and that shelter residents were trespassing on neighbor's property, urinating in public, and creating a nuisance to the residents of the surrounding area. We find these factual determinations, although debatable cosndering the conflicting testimony presented to the Zoning Board, to be sufficiently based upon requisite evidence and adopt them for purposes of this appeal."

The Zoning Board refused to recognize the shelter activity as an accessory use to the church zoning and further refused to issue a use variance.

On appeal, held: Reversed: Because of the Religious Freedom Restoration Act, adopted by the Congress in 1993, the agency must not apply its zoning laws to restrict religious activity unless it can show that restriction of the activity is supported by a compelling state interest and that the restriction is the "least restrictive means" by which the city could pursue that interest.

The court held that it did not matter that the church had alternative locations in which to conduct its shelter that were less harmful to surrounding neighborhoods - the church viewed its ministering to the poor as the "witness" of its religious faith, and it was priviliged to conduct the activity where its members traditionally worshipped. Note: the court did concede that the same analysis might not apply if a church in the first instance were applying for zoning to locate a church with a homeless shelter at a new site.

Further, the court observed that it did not matter that sheltering the homeless on premises was not an activity carried out by other churches. This religious group had no duty to be like others - it merely had to hold a sincere conviction that its activities were in fact religious.

The court pointed out that the whole purpose of the Religious Freedom Restoration Act was to overturn Supreme Court and lower court precedent that had made it possible for government to curtail religious activities by "neutral" legislation not deliberately aimed at such activity, even though the impact on the religious practices might be significant. Here, although the state had a valid compelling state interest in carrying out a uniform zoning scheme, it had not demonstrated that it could alleviate the conflicts presented by the church's activities by means other than prohibiting them.

Despite the fact that the church had represented in the Zoning Board hearing that it had policies in place that would, if enforced, control this behavior, but that nevertheless, the Board found, the behavior persisted, the court suggested that there had been no attempt by public officials to establish "regulatory guidelines" to see if these would cure the adverse neighborhood impacts. The court does not indicate whether these guidelines were to be imposed or negotiated.

Comment 1: This case appears to be one of the first major applications of RFRA to smash a neutral and well established zoning ordinance. It does seem clear that the pre-RFRA authority would have supported the City here. See First Assembly of God of Naples, Fla. v. Collier County, 20 F.3d 419 (11th Cir. 1994) (interpreting zoning ordinance to prohibit an on-premises church operated homeless shelter is not a breach of the Free Exercise Clause); Macedonian Orthodox Church v. Planning Bd. Of Township of Randolph, 630 A.2d 96 (N.J. Super. App. Div. 1994) (zoning ordinance applied to restrict expansion of church's all purpose center - not an unconstitutional imposition on religion). On the question of whether special zoning privileges for churches might violate the Establishment Clause , see Cohen v. City of Des Plaines, 8 F.3d 484 (7th Cir. 1993) (permitting a nursery school to operate in a church when other schools prohibited under same zoning not a breach of Establishment Clause.) All three cases are discussed in the 1994 SURVEY OF CURRENT DEVELOPMENTS IN REAL ESTATE LAW published by the ABA.

But compare: First Covenant Church of Seattle v. Seattle, 840 P.2d 174 (Wash. 1992) (imposition of controls on exterior renovations of historic landmark church violates state and federal Free Exercise Clause.) Contra: Rector, Wardens and Members of Vestry of St. Bartholomew's Church of New York v. New York, 914 F.2d 348 (2nd. Cir. 1990) cert. Denied 11 S.Ct. 1103 (1991) Both of these cases are discussed in the 1993 SURVEY OF CURRENT DEVELOPMENTS IN REAL ESTATE LAW published by the ABA.

Comment 2: Commentators in the new land use list, where this case first appeared, view RFRA as a mistaken intrusion by federal policy into a domain appropriately left to local control. They see this case a good example, and also cite new developments concerning cellular antennae and other telecommunications apparatus. Certainly there are local issues that ought to stay local, but it is hard to imagine that either protection of religious minorities or telecommunications would fit within that category. If free exercise of religion is to mean anything, then it must mean that people have the right to be different and to act differently in the name of religion. If that irritates the neighbors, that may be the price we pay for the preservation of this precious right. The editor isn't inviting a homeless shelter to set up in his neighborhood church, but does recognize that government should make special efforts to accomodate sincere religious practices.

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