Zoning Practice — October 2008

Ask the Author

Here are reader questions answered by Adam Kingsley and Thomas Smith, authors of the September 2008 Zoning Practice article "The Zoning of Religious Institutions in the Wake of RLUIPA — A Guide for Planners."

Question from Doug Johnson, City of Overland Park, Kansas:

I am curious about the effect RLUIPA might have on the regulation of temporary signs. My community restricts the use of banners and other temporary signs quite strictly for businesses and most organizations. However, our legal department is reluctant to enforce those same requirements on religious facilities — I think because of a combination of religious freedom of speech issues and RLUIPA. Consequently, churches all across our community have banners up more or less constantly in addition to their permanent signs. Are there any legal cases that indicate the extent to which RLUIPA might effect the regulation of temporary signs?

Answer from author Adam Kingsley:

I have not seen any cases involving RLUIPA and the regulation of signs, but I believe that there is an ongoing sign-related dispute concerning a church in (or near) the City of Baltimore.

Assuming: (i) that your sign ordinance meets all the generally accepted First Amendment criteria and (ii) religious institutions are being treated in the same manner as other uses, I don't see why the ordinance could not be enforced against a religious institution. Further, I don't think that a limitation on signage would be considered a "substantial burden" on the exercise of religion. However, I understand the reluctance of your legal department to press this issue.

Answer from author Tom Smith:

Generally, I agree with Adam. However, many temporary sign ordinances are too strict. They create an enormous enforcement burden on staff, and in many cases, by the time enforcement staff gets the sign taken down, the sale or special event is over.

Businesses need temporary signs for special sales and seasonal events. Institutions have numerous special events. Sign codes should recognize that temporary signs are a part of operating a business or religious institution.

I think it is an error to have enforcement staff working on violations of temporary sign regulations when many permanent signs are installed in violation of zoning regulations.

I do not see any constitutional problems, but it seems there would be serious public relations problems if religious institutions can't advertise their charitable or community events.

Question from Liz Shaw, AICP, City of Florence, South Carolina:

We have a home in a residentially zoned area being used for church services at the weekend. The complainant states that no one is actually living in the home. Can we require the property owner to bring the home into compliance for a primary use as a church — this would mean meeting zoning and building code requirements? We understand that proving if someone is living in the house may be difficult.

Answer from author Tom Smith:

I think this is a difficult question.

We have lots of people who, in their homes, host prayer groups and host groups that conduct religious services. We also have many people who are members of religious orders who live in small groups and have religious services as part of their home life.

However, most homes were not built to accommodate significant congregations. Most homes have only one or two parking spaces. Most homes do not have rooms that can accommodate significant amounts of seating. Most homes do not meet typical building code requirements for public assembly uses. Fire safety is a serious issue for any assembly type use.

If the property represents the use of the property as a church, then they should be required to meet zoning and building code requirements for religious assembly.

Answer from author Adam Kingsley:

I agree. There can be fine line between hosting a group at a house—whether it’s bible study, a book club, or political conversation—and having the house effectively turn into a place of assembly because of the frequency or size of the meetings.

If, at some point, it becomes clear that the home has taken on a different character, then it can (and should) be treated as an assembly use—with all the zoning and building code regulations that apply.

Question from Laura:

In the zoning codes I have worked on since RLUIPA's passage, we have used the term "places of public assembly" to incorporate places of worship, regulating them in a manner similar to service club facilities or other non-commercial places where folks can gather. The definition used in codes is clear in distinguishing between commercial and non-commercial places of assembly. I'm curious whether the authors see any pitfalls in this approach and any words of caution they might offer.

Answer from author Adam Kingsley:

This is an excellent question. The "equal terms" provision of RLUIPA was designed to put religious institutions on the same footing as private clubs, meeting halls, and other similar uses.

Some courts have, however, stretched the term "assembly use" to include commercial uses such as movie theaters and even restaurants where people "assemble." This makes little sense from a planning perspective (or a legal perspective).

I've been trying to come up with a term to characterize the types of assembly uses that RLUIPA insists be treated on equal terms with religious assembly, as distinct from EVERY place where people "assemble."

I've thought about the term "membership institution" which corresponds with your "non-commercial place of assembly." I'm a bit concerned with the term "commercial assembly." Although it works from a planning perspective, religious institutions might argue that under the literal term of RLUIPA not all "assembly" uses are being treated equally.

Answer from author Tom Smith:

We typically recommend that "places of worship" be placed within a "public or civic use category" but within that category we also recommend that places of worship be referred to as "religious assembly." In many zoning ordinances religious assembly uses are treated more liberally than other "assembly" type uses such as movie theaters, banquet halls, or night clubs. Many jurisdictions allow religious assembly in residential districts but they would never allow a movie theater or live theater in these districts.

In the "public or civic use category" we typically allow for uses like colleges, libraries, schools, public recreation buildings, and "religious assembly." I believe the uses in public or civic use category have things in common. Many offer significant "community benefits." Many offer social or educational services. Some serve specific neighborhoods, and many involve assembly.

I would not recommend making the distinction between commercial and non-commercial assembly. Some private clubs charge membership fees or dues (and therefore may be commercial) but many of these private clubs have limited impacts. However, I like the reference to "religious assembly" in a public or civic use category because assembly implies the need for parking and it implies that the building proposed to be used for religious assembly can accommodate a significant number of users in a safe manner.