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… 2. Excluding Religious Institutions from Zoning Districts in General
As the case law under RLUIPA is evolving, it is clear that a local government can exclude religious institutions from some zoning districts, but not from the entire community. In regulating uses that have Constitutional protection, it is always wise to document the governmental interest involved in a particular regulation, even if that governmental interest does not rise to the level of “compelling.”
Thus, one can imagine excluding religious institutions from:
- an industrial park zone (to protect the availability of land for uses that will build the economic base),
- an exclusive agricultural zone (to protect farming and limit sprawl),
- a densely populated residential area with narrow streets (to prevent parking and congestion problems), or
- a downtown district (to prevent storefront churches that are used only a day or two a week from creating large dead spaces along major downtown sidewalks).
It seems more difficult to make the case to exclude religious institutions from multi-family residential districts and from most commercial districts, although a few communities have done so.
3. Distinctions Based on a Religious Institution’s Size
Some local governments may want to recognize the land-use differences between the traditional neighborhood place of worship and some of today’s mega-institutions by continuing to allow only the smaller, more neighborhood-scale institutions in residential districts. There are three different ways that a local government might make such a distinction without violating RLUIPA or the Constitution:
- By distinguishing between the types of institutions based on the seating capacity of the principal worship space. Traditional neighborhood institutions seat between 100 and 250 people in that space; so institutions with seating capacity in that range could be allowed in all residential zoning districts, while taking a more restrictive approach to the larger ones.
- By basing the distinction on the total floor area of buildings located on the site (probably excluding the residence of the principal worship leader).
- By significantly limiting the accessory uses to a house of worship in less intensive residential districts (see separate discussion in Section 5 below).
An ordinance making distinctions like those suggested here should allow the larger institutions either in commercial and multi-family districts OR where they have direct access to an arterial road, or direct access to a major collector, adjoining an arterial. Most of the modern mega-institutions recognize the marketing value of such locations and actively seek them out. It would be very unusual for a congregation to propose to build a major institution in a quiet residential neighborhood.
Conflicts sometimes arise, however, when an existing neighborhood religious institution grows, gradually buying and tearing down nearby homes to build new facilities. A local government that attempts to limit such growth may face a backlash from the institution’s members, but allowing such an institution to grow without restraint can lead to significant neighborhood protests.
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article continues with:
4. Non-Discrimination Regulating Religious Institutions & “Places of Assembly”
5. Regulating Religious Institutions as Special or Conditional Uses
6. Accessory Uses & Religious Institutions
7. Parking, Landscaping, and Signs