Land use regulations, zoning laws, and permit requirements of every stripe usually constitute a maze that the uninitiated should not attempt alone. Church leadership often begins construction or remodeling without fully considering these rules, or worse, believes they have. Small churches are especially vulnerable because of their limited resources.
In Jesus Christ is the Answer Ministries, Inc. v Baltimore County, Slip Op. (USDC, D. Mary., 2017), the Plaintiff church started like so many in someone’s home. As the church outgrew the home, a 1.2 acre residential lot and existing 2900 square foot home were purchased. The church remodeled the existing home for use as a church building but apparently failed to consider land use regulations or obtain permits. The neighbors complained and the County issued a cease and desist letter. The court’s opinion should be consulted regarding the precise complications alleged by the County. The church submitted at least two applications for permits and variances. Hearings were held and the complainants were quoted by the federal court as testifying: “[D]ancing and hollering like they are [sic] back at their home back in Africa somewhere.” The applications were denied. The Plaintiff sued alleging the denial was based on religious discrimination rendered unlawful by the Religious Land Use and Institutionalized Persons Act of 2000, 42 USC §2000cc. The case was dismissed because the Plaintiffs did not plead that the County actions were intentional or subtle forms of discrimination. The Plaintiffs also failed to plead that their applications complied at least minimally to the extent possible with land use regulations and was compatible with the neighborhood.
As noted, engaging a consultant to navigate land use regulations is imperative before purchase or construction. Also, before engaging in litigation of this type, more so than most, laying a foundation for the case is imperative. Discrimination is easy to claim but hard to prove. Also, there was no limit on the number of applications that could be made. Churches often make an application like this on their own without the benefit of qualified counsel. While running to the federal court may have seemed like a good idea, getting on the agendas of the public boards that governed the county and stating the case may have paid greater dividends.
We have reported on this type of tar baby before. In these situations, a public funding program to accomplish a governmental purpose attracts a variety of public and private participants. We reported in 2017 on a United State Supreme Court opinion regarding Trinity Lutheran Church v Comer, 137 S. Ct. 2012 (2017) regarding a program that paid for rubber surfacing on concrete play “ground” surfaces and a subsequent decision in Taylor v Town of Cabot, 2017 VT 92 in which a town granted money for restoration of a historic church building. In the Vermont Taylor opinion, the case was remanded to the trial court and a risk the church ran in the case was that the church might have to refund the grant money. In Comer, the church prevailed so that the playground upgrade need not be repaid by the church.
In Caplan v Town of Acton, Slip Op. (Mass. 2018), taxpayer protesters sued town because a church received two grants. The appellate court split the difference, to a point. One grant was for payment of an architect to draw up a “Master Plan” for restoration of the church building and two outlier buildings. The main church sanctuary building was built in 1846. The Town of Acton was founded in 1735 and the church formed part of the town square. The other grant was to repair stain glass windows first installed in 1898. In order to obtain the money, the church had to convey a “historic preservation restriction” on the buildings, the money could only be obtained in reimbursement on invoices for work consistent with the preservation proposed in the church’s applications for the grants. The court remanded the “Master Plan” grant for further consideration and barred the grant for the stain glass windows. The total value of both grants was less than $110,000, a little over $50,000 each.
The opinion is valuable for its historic review of the reason Massachusetts amended its Constitution in the Nineteenth Century by adding an “anti-aid amendment.” The court reported that in the Nineteenth Century the pressure to provide public resources to churches caused “fear” the public coffers would be drained by competing churches and denominations.
But, historic preservation is almost too expensive for private resources to unilaterally achieve because private capital usually must chase profit. Profit is obtained not through preservation but through maximizing return on capital. Thus, the government purpose of preservation might be thwarted because part of the history to be preserved, which was built before several states in the union became states and is very expensive to keep, included a church. There might be a hidden lesson in this opinion, too. The “historic preservation restriction” might be more costly in the long run than the church presently anticipates because taking the government’s money is always risky.
Today the United States Supreme Court included the title of this post, which has been quoted here from that opinion, in its opinion determining that the state of Missouri violated the First Amendment by refusing to award grant money to an otherwise eligible non-profit for the replacement of pea gravel playgrounds with rubber matted playgrounds. The rubber matting is poured and made from the recycling of tires. The non-profit was a church. Missouri refused to allow the church to be eligible for the playground grant because the Missouri constitution requires separation of church and state and the court in Missouri deemed playground resurfacing grants as an aid to established religion.
Thus, a non-profit that qualifies for a government benefit cannot be excluded simply because it is a church or para-church organization. Trinity Lutheran Church v Comer, Slip. Op., ___ US ___ (June 26, 2017).
The church qualified for the grant because it was a non-profit, it served low income children in its school, its school was open to any student of any faith and not just church or denomination members, and the playground was used by the community as well as the school. And, as the Court noted: “the gravel can be unforgiving.”
While many will see this decision as both enlightened and fair to taxpayers that happen to be religious rather than permitting those taxpayers to be penalized because they have organized themselves into a church, government money should always be accepted cautiously. It rarely is freely given and usually comes with compliance obligations. For example, to qualify, the church also had to make a showing that it was developing or had a recycling program of some type. While that is probably innocuous, other requirements in other programs might not be.