Zoning the Flock: Are Megachurches the New Walmart?

"That's the size of a Target or a Nordstrom's," said Dolores Milmoe of the Audubon Naturalist Society, which has joined the grassroots resistance. The church would occupy a clearing on a hilltop overlooking the Sugarloaf Mountain Natural Area.

The case in Maryland seems an odd recasting of the David and Goliath tale, but it's a version that is becoming more common given the tremendous growth of megachurches around the country.

While megachurches are not new to the religious landscape, rapid expansion over the last three decades has brought them onto the public radar. According to Scott Thumma of the Hartford Institute of Religion Research, "90 percent of megachurches are growing, and 25 percent have seen numbers more than double in five years," from 2003 to 2008. The "mega" designation refers to churches with an average weekly attendance of at least 2,000 worshipers.

Thumma said some congregations have been accommodating their growing flocks by creating small satellite locations in theaters or school basements to avoid the legal hassles of construction projects, which often run up against zoning laws in both urban and rural communities. But the prevailing pattern in the last several years, Thumma said, has been for churches to move forward with ambitious building plans under the auspices of the federal Religious Land Use and Institutionalized Persons Act.

Luke Goodrich, an attorney with the Becket Fund for Religious Liberty, said RLUIPA has leveled the playing field between religious organizations and other land use applicants. "There was concern that counties would allow all sorts of secular uses, like assembly halls, bingo halls, auditoriums and movies theaters, but forbid churches," he said.

The law was conceived to prevent federal, state or local governments from imposing unfair land use restrictions on religious groups. But, it also stipulates that even if a zoning law applies equally to all parties, there must be an indisputable reason to uphold a rule that places a substantial burden on a religious applicant.

Since its passage in 2000, the law has come into play in hundreds of land use cases between religious organizations and communities, paving the way for expansions by giving churches added clout in zoning battles.

While the county planning board in Maryland ruled that Global Mission's church is too big for the agricultural zone, the church's attorney, David Severn, said the proposal complies with the county's building standards. He plans to bring attention to the RLUIPA precedent during an appeal.

"If you are going to impose certain limitations on churches, you need to have a very good reason to do so," said Severn. "You need to put burdens on an applicant in the least restrictive way possible."

Planning board vice chairman Bob White said the county's ruling was based on the scale of the building, not its intended use, adding that RLUIPA "did not say that religious institutional uses should receive special consideration or a 'pass' on county zoning laws."

However, the results of most zoning decisions have favored churches. Lora Lucero, an attorney with the American Planning Association, said the legislation gives churches a substantial boost in the zoning hierarchy.

"That is the biggest beef with this law. Lawmakers are supposed to treat all land users equally, whether an industrial giant or a church," Lucero said.

She pointed to a recent case in Colorado, where a jury decided in favor of the Rocky Mountain Christian Church after Boulder County denied it permission to expand. Lucero said the church had been in the area for years and had undergone several approved renovations. But when the county deemed a proposed addition to be out of scale with the low-density neighborhood, Rocky Mountain sued.

Although Rocky Mountain ultimately won the case under RLUIPA, a jury originally had decided in favor of Boulder County, saying the church's First Amendment rights had not been violated. While Goodrich said the outcome shows RLUIPA is necessary because of the difficulty of proving discrimination in zoning decisions, Lucero said the case demonstrates that the law is unconstitutional.

"You have to treat [churches] as more special than a regular land use applicant or you will end up violating RLUIPA."

Constitutional issues aside, the lengthy and complicated legal battles can impose real financial burdens on a community. "Under the RLUIPA, if a church challenges, then they can force the local government to pay their attorney fees," said Lucero.

In many cases, money is a factor from the beginning.

Because religious organizations are exempt from paying income taxes, they are often consciously zoned out of prime retail areas, church advocates say. Goodrich of the Becket Fund said this limits options in congested urban areas where small congregations might operate in storefronts. "The city wants to generate tax revenue, and churches don't bring in enough business."

He said the Becket Fund has been involved in an ongoing dispute in Longbranch, N.J., where city planners with designs to build a "hip downtown entertainment district" denied a request by the Lighthouse Institute for Evangelism to conduct religious services in a building in the area.

Besides zoning and tax issues, conflicts between religious organizations and communities often mask more fundamental tensions. "I've seen aspects of race play out, and I think also we've seen that in expanding areas -- sprawl cities in Texas and Georgia -- churches are painted with same brush that a Walmart might be," said Thumma.

"Sometimes the church is not being nice, and sometimes the community just wouldn't want anything built there. "

Regardless of which party prevails, Thumma said victory has a price. "It can create ill will in the community and, in some sense, bad publicity" for the church, the town and the religious community as a whole.

Having been drawn into many land use disagreements in the past, Thumma said he understands both sides. "It's a complex situation around the country. Rather than take it to court, and spend an enormous amount of money, it's better to compromise." But he noted that in all the cases he has come across -- from California to Texas to New Jersey -- he does not know of a single megachurch that has been turned down.

"RLUIPA is a pretty powerful bill for the protection of religious land uses," said Thumma. "It just doesn't accomplish a whole lot, even if the church wins."