When the Rocky Mountain
Christian Church opened its doors in Niwot, Colo., in 1984, only a
few families attended services. Over the years, however, the small
religious institution has mushroomed into a megachurch, with over
2,000 members along Colorado’s rapidly growing Front Range. The
church has added new services and opened a school, and its
facilities now exceed 100,000 square feet.
The church is
located in Boulder County, which, like its namesake city, is known
for its relatively strong land-use policies. Boulder’s sprawl runs
up against a ring of dedicated open space, and agricultural buffer
zones keep the rural character somewhat intact. The Rocky Mountain
Christian Church’s 55-acre site is located in one such buffer zone,
and for the past 20-some years the county has deemed the church
compatible with the zone, granting it five approvals to expand.
Last year, the church – now about the size of a small Wal-Mart –
tried for a sixth expansion, seeking to double its size to 200,000
square feet. But a church that big, the county ruled, would destroy
the pastoral atmosphere. “Everybody came to the point of deciding
that this was too much,” says Graham Billingsley, Boulder County
Land Use Department director. So the county turned the church down.
The church, however, and its own team of lawyers
specializing in land-use litigation, responded by suing the county
under a little-known but powerful federal law: The Religious Land
Use and Institutionalized Persons Act. For mega-churches across the
country, this law, passed by Congress in 2000, could become a
battering ram against zoning and land-use laws.
The law,
known as RLUIPA, was initially intended to prevent local
governments from using land-use regulations to discriminate against
religious practice. A town that doesn’t want Muslims, for example,
might use architectural guidelines to keep a mosque from being
built. The act guards against such discrimination by prohibiting
local governments from imposing land-use regulations that place a
“substantial burden” on religious institutions without a
demonstrable “compelling interest.” According to Kevin Hasson,
president of the Washington, D.C.-based Becket Fund for Religious
Liberty, the law has brought clarity and fair play. “Churches don’t
have to be behind the eight ball like they used to be,” Hasson
says. “They get to play equally with developers.”
Churches around the country, however, have taken the law a step
further, using it to force cities and counties to allow them to
build facilities where land-use laws might otherwise prohibit it.
“There has been a dramatic increase in court cases challenging
land-use determinations,” notes Marci Hamilton, a church-state
scholar and visiting professor of public affairs at Princeton
University. “RLUIPA has a heavy impact on residential
neighborhoods.” Take Scottsdale, Ariz., where the city initially
denied a church’s request to build a school in a residential area.
The church sued under RLUIPA, and Scottsdale, worried about a
lengthy, costly court battle, buckled and allowed the school to be
built.
The law also allows religious institutions that
challenge local zoning laws in court to recoup their attorneys’
fees from local governments if they win. As a result, those
governments can be quick to settle with churches, even at the
expense of their own zoning regulations.
“It has been effective for churches to use RLUIPA to
bully local governments into settling where there was no violation,
no reason to settle, and no discriminatory motive, and the
community had a compelling interest in making the decision they
made,” says Lora Lucero, a staff attorney with the American
Planning Association and the editor of an upcoming book on RLUIPA.
In the case of Boulder County vs. Rocky Mountain
Christian Church, the “compelling interest” at stake is the
preservation of rural land use. To the county, approving the church
expansion would be inconsistent with its long-standing policy of
preserving significant agricultural lands. “We are not treating
this church any differently than anyone else. We deny it because it
is just too big,” says Billingsley. “If you start allowing
significant urban uses, you can no longer leave the city and feel
like you are in the country. The sense of place, the magnificent
views, all of that goes away.”
The church, however,
maintains that the county’s denial has placed a significant burden
on religious exercise, free speech and assembly, forcing it to cut
sermon time and turn away members because of space constraints.
According to Thomas Macdonald of the law firm Otten Johnson, which
represents the church, the county is in violation of the law “by
enforcing regulations in a manner that imposes a substantial burden
upon the religious exercise.” Generally, churches have dismissed
open-space preservation as a mere aesthetic concern that does not
stand in the face of higher-order religious rights. “The argument
of preserving open space doesn’t rise to the level that the courts
would require for a compelling governmental interest,” says
Macdonald.
However, a recent RLUIPA case in California
may indicate otherwise. This year, a federal jury ruled that
Alameda County did not discriminate on religious grounds when it
denied the Redwood Christian schools’ application to build a campus
on rural land near Castro Valley. The county’s decision was driven
by the need to protect the area’s rural character and control the
impact of noise and traffic. Even though the decision is currently
on appeal, Hamilton considers this an important case. “This shows
that open space is not necessarily going to lose,” she says.
In the meantime, the Boulder County case is scheduled for
trial in November 2008. A church victory could spur a new wave of
religious land-use requests across the country. “If we lose this
case,” Billingsley says, “this means that the federal government
steps in and says that local decisions cannot be made.” Which would
mean that, when it comes to land-use decisions, churches not only
have God on their side: They also have federal law.
The author is a freelance writer and photographer based in
Vancouver, British Columbia, who specializes in cities and the
environment.
This article appeared in the print edition of the magazine with the headline The Promised Land?.
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