Tag: church property

ZONING TRAPS AND SNARES

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.

BLESSED SHACKLES – GOVERNMENT AID TO CHURCHES

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.

REVERSION PROVISION MANUVERS

Typically, denominational authorities include in their denominational control documents, or even in the titles of the local churches, reversion provisions that prevent local churches from going rogue or otherwise fleeing with the real property.  These provisions are generally intended to protect the generations of members that contributed to the equity owned by the local church by preventing the current generation of members, or some vocal part, from “strip mining” the local church real estate asset.  Sometimes these provisions provide leverage to the denomination to enforce unpopular ecclesiastical positions.  Rightly or wrongly, the reversion provisions are enforced by secular courts and courts will rarely if ever look to the underlying dispute to deny enforcement.

In Saint James Mission Church v African Methodist Episcopal Church, Slip Op. (La. App. 2017), some of the local church members tried to use an eviction docket to evict the denomination after they were locked out.  The split with the denomination raged through the eviction proceeding, a federal trial court proceeding, a federal appellate court proceeding, and finally the state appellate court proceeding.  It took at least six years.  The legal expense was likely significant.  But, in the end, the federal courts ended up on the side line, the state trial court dismissed the eviction proceeding, and the state appellate court affirmed.  The state appellate court held that the eviction docket had a dedicated purpose and the enabling statutes did not allow the proceeding to be expanded into an “ordinary proceeding.”  Thus, dismissal was appropriate.

The attempt to expand the eviction docket was clever but ultimately, if this is the final round in this war, an expensive failure.  It was a stretch to characterize the denomination as a “lessee.”  Limited purpose court dockets are rigid because otherwise they could not serve the limited purpose that birthed them so the rebelling local church members probably knew this was a long shot.  Knowing that, they funded the effort.  Litigating about litigating is always expensive and never reaches the merits of the dispute.

HIERARCHICAL CHURCH CORRALS

To escape from the confines of the hierarchical church governing rules and documents a local church will often allege all sorts of things.  In Alpine Methodist v New Jersey United Methodist Church, Slip. Op. (Sup. Court NJ App. 2017), the plaintiff alleged it pre-existed the existence of the denominational authority and therefore was not subject to the property reversionary requirement in the denominational manual.  However, the Court found there was no evidence to explain that after the denominational authority was established the plaintiff had acted as anything other than a full member for many decades.  The plaintiff also alleged that a retired pastor was guilty of misappropriation of funds.  The denomination heard the allegation and refused to proceed with a disciplinary action.  The plaintiff alleged that the failure to act left the plaintiff with no forum or relief.  But, the Court held the refusal by the denomination to engage a disciplinary process was ecclesiastically binding.

Interesting in the case was that the Plaintiff, the local church, engaged a private investigator to conduct an inquiry into the alleged financial misconduct.  The evidence of financial misconduct did not lead the local church to seek a criminal charge or to engage in its own disciplinary complaint with the denomination.  Instead, the church sought relief in court.  Interesting, too, was that the private detective admitted that the local church was subject to the denominational manual.

Retention of a licensed private detective, who in this case was also a retired police officer, was probably a good call in order to document what happened to the money.  The best practice would be to have the detective report to the church legal counsel and work under the supervision of counsel.  A certified public account should also have been consulted to review the opportunities for financial misconduct inhering in the church’s financial system and suggest reforms.  If criminal charges, a collection action, or a disciplinary proceeding are not preferred, one or all three should only be deferred if the wrongdoer signs a written admission of all of the known facts about the financial misconduct.  Wrongdoers are usually gone, dead or insolvent, so collection actions are typically pointless.