THE TIGHTER ZONING DEFENSES
A new legal landscape faces churches that want to build.
Lyle E. Schaller
January 1, 1993
For over three hundred years, church steeples have stood as landmarks in the center of cities and villages across this country. Today, however, many municipal officials are doing whatever they can to keep churches out of town.
In 1936 Edward M. Bassett, a principal author of the first modern municipal zoning law adopted by the City of New York in 1916, wrote a book titled Zoning. For years city planners regarded it as a classic text on the municipal regulation of land.
When that landmark resolution was drafted, Bassett wrote, it did not occur to its creators "that there was the remotest possibility churches, schools, and hospitals could properly be excluded from any districts."
In 1949, however, the California Court of Appeals ruled that municipalities could ban churches from residential areas. Both the California State Supreme Court and the United States Supreme Court refused to review that decision. Today many communities reject church applications for building permits in a residentially zoned district.
More recently the Smith case, decided by the United States Supreme Court in April 1990, has been cited as a precedent forbidding the construction of religious facilities. (See Christianity Today, July 16, 1990, p. 48 and October 7, 1991, pp. 38-41.) In Oregon Employment Division v. Smith, the court ruled any "reasonable law" should prevail even if it creates "incidental" burdens on the freedom of religion.
This and other rulings suggest that new, relocating, and growing churches may be living in an age of limits.
Majority rules
The Smith case leaves defining the scope of religious liberty in the United States to federal, state, and municipal legislatures.
That means majority rules.
If a congregation seeking a building permit can ...
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