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Churches and Zoning: An Interesting Clash

28 Jul 2017

I read an interesting article that brought together my concerns both about zoning and land use and religious freedom issues.  It seems the City of Palo Alto, California, quite a nice place to live it is said, and the home of the elite Stanford University, is “cracking down on churches” that allegedly violate its zoning laws.  In an article from CBSSFBayArea, at http://sanfrancisco.cbslocal.com/2017/07/27/palo-alto-neighborhood-churches/, it is reported that city officials in Palo Alto have ordered a the First Baptist Church to oust its tenants, who use the building during the week, and which include a psychologist who provides low-cost service for neighborhood youth, a music school and the Peninsula Peace and Justice Center.  The pastor argues that these are church related and that they help pay for the upkeep of a church located in a high-rent area for 125 years.  The city argues that the church is not abiding by the “single use” zoning regulations and has threatened large fines for failure to comply.

My first criticism of the city is its zoning laws themselves.  I have written before and will again about how zoning doesn’t actually make cities more liveable but less so (see my two blogs on Jane Jacobs and her famous book The Death and Life of Great American Cities).  Since its inception zoning has made it next to impossible to have a vital and diverse city life that draws people to live there and to thrive–even in poorer areas.  In addition, in high-cost cities like Palo Alto, zoning forces more people to pay more to live there and in this case it makes low-cost services more expensive for poorer residents by forcing them into higher-rent facilities (other than the church).  The city isn’t really concerned about its residents in that case.  It is simply reacting to some complaints about traffic, and the infamous excuse “noise,” which would be present in some measure in any case.  Either we want to live in cities or not, but if we do we (1) cannot ethically try to prevent others from having the same advantages we find in such living and (2) cannot make cities into quasi-suburbs–if one wants a suburb, then move there, and let cities function as cities.  Finally, zoning makes every land use more expensive than it would be otherwise, by preventing the economies that can be achieved with higher densities and greater variety of land uses.  Is that what we want for residents?  

My second criticism here is the freedom of religion issue.  The church has argued these tenants are an integral part of what churches do, even if they aren’t formally part of the church.  That argument has some merit, though, as always, it may be difficult to sort it out in practice.  If the church has a case, then the city is interfering with the church’s free exercise of its religion, and the Federal courts as well as statutory law have has something to say about interference with land use on the part of religious institutions.  I admit this case is a bit more complex and I can’t be sure a court would buy a First Amendment argument or one based on the Religious Land Use and Institutionalized Persons Act,  42 U.S.C. § 2000cc et seq. (2000).  But at the very least what Palo Alto seeks to do seems to violate the spirit of the First Amendment as it has been interpreted over the years, and certainly it violates at least the spirit of the statute.  

In general, zoning like that enacted in Palo Alto only promotes the spirit of “we have ours and we don’t want any of the rest of ‘you people’ to get yours.”  Moreover, even if the city kept its zoning laws, it seems that it would be a very reasonable exception to allow churches to keep doing what First Baptist is doing.  By the way the Palo Alto position does not send a good signal to churches elsewhere.  Church is not just for Sunday or even for just worship.  Church buildings may have many legitimate functions that are related to the mission of the church as institution.  The building is just a vehicle or a means to an end.  When cities begin to try to exclude those functions, it makes one wonder whether there might not be some religious animus at work.

At any rate, keep your eyes on this situation. It may be resolved.  Let us hope so.  But it may also be a harbinger.