[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, <a href='http://search.npr.org/cf/cmn/
'>http://search.npr.org/cf/cmn/
</a> 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.

____________________