Church Zoning Often Subject to Special Use Permits

Last Updated: May 23, 2024

Traditionally church zoning was not an issue. Places of worship were allowed "as of right" under municipal zoning codes in residential districts.

red brick church with beautiful large stained glass window and a bit of white frame belfry

Thinking about the 1930s, when many U.S. cities initiated zoning, many households walked to worship services, and it wasn't considered disruptive at all to have a place of worship in a residential district.

A few zealous municipalities created a zoning category called institutional, and assigned that zoning district to churches, schools, and government buildings.

Increasingly, special use permits or the equivalent are required to obtain permission to build or expand a house of worship, for several reasons described below.

1. Now, most attendees arrive by automobile, so traffic is a potential issue. We are not religiously homogeneous as a people, so in a typical community, the churches, synagogues, and mosques are holding services at many different times during the week. This means that any traffic problems are not necessarily isolated to a couple of hours per week.

2. Not only are we more diverse, but also the congregations are taking on more and more roles. Many sponsor day care centers, parents day out programs, senior citizen activities, youth recreation, social services, and numerous other activities at all times of the day and week. Almost everyone comes and goes by automobile.

So it's no longer true that a place of worship is unlikely to cause complaints in a residential neighborhood.

Sometimes church zoning becomes very controversial, once specific plans, programs, activities, parking needs, and worship times are known.

Some opposition to planned places of worship will be based on the particular faith that proposes to build. If it's a minority faith in the community, you could be faced with a major dispute that will have nothing to do with land use.

Special Use or Conditional Use Permit Requirement

To deal with traffic and commotion, many municipalities have started to add stipulations to the still-prevalent practice of allowing church zoning in residential districts.

Most common among these would be requiring a special use permit or a conditional use permit.

Strictly speaking, a special use permit merely requires an additional level of scrutiny, namely a public hearing and recommendation from the planning commission, and then another public hearing and action by the city council or whatever your governing body is called.

A conditional use permit requires these same procedures, but also spells out "conditions" that must be met at all times during the operation of the land use in question.

However, in practice, the two terms are often used interchangeably. Either allows public input and questioning as to actual scheduling, programming, and frequency of events, and also in terms of handling of traffic and parking arrangements.

Sometimes noise is a church zoning issue.

Once in my professional practice, a particularly charismatic congregation wanted to obtain a church zoning designation mid-block in a residential neighborhood. The climate was a warm one, and the congregation was purchasing a long-deserted former church with no air conditioning. The line of questioning somehow veered over into the schedule, and the pastor allowed that usually the revival meetings were over by 10:00 p.m. or so on weeknights. That idea sent the neighborhood over the edge, and they fought tooth and nail against that special use permit.

I lived across the street from a church recently, built back when church zoning wasn't such an issue. Now every Sunday morning involves risking life and limb to back out of one's own driveway as cars round the corner running late.

Another personal experience is that residents in a dense residential neighborhood adjacent to a church complained about the outdoor Easter service at 6 a.m. I see their point.

All of these situations point out that a conditional use permit can specify boundaries for congregational activity in a way that benefits the community.  Truthfully, written conditions for church operation also benefit the congregation, which at least knows what is expected and which can argue that it is abiding by the conditions if a controversy breaks out.

In fact, you may think of other ways to create synergy between congregation and community.  For example, if you represent the local government, think carefully about opportunities for shared parking arrangements that might make it possible for businesses, residents, non-profits, or even other congregations to use the usually considerable amount of parking required by the zoning ordinance during times of the day or week when a place of worship does not use all of its parking for its own purposes.  Such arrangements also can be formalized in a special use permit.

Why Not a Separate Church Zoning?

So by now you are asking if church zoning can cause all these problems, why are churches and other places of worship allowed such latitude in most zoning ordinances?

The answer lies in court decisions that add up to the fact that municipalities need to tread very lightly, lest they violate the U.S. Constitution's First Amendment guarantee of freedom of religion.

Some courts have held that congregations are virtually immune to the restrictions of municipal zoning. Others imply that churches are perfectly appropriate in residential districts and cannot be banned.

You might hear this referred to as the New York rule, because New York courts have been particularly insistent that even if places of worship are detrimental to traffic and property values, their presence contributes offsetting benefits to the public health, safety, and welfare. So therefore they cannot be prohibited.

In other words, the courts presume that places of worship should be accommodated, both because of First Amendment guarantees of freedom of religion, and because of equal protection under the law provisions of the 14th Amendment.

This second dimension, equal protection, means that a municipality is well advised to be extremely careful in turning down a mosque, synagogue, or other place of worship that represents a minority religion in the community. Even if the public input is very negative, elected officials need to be very certain to be objective if a minority religion is involved.

So in short, places of worship really have latitude. In one famous case, even sideyard setbacks could not be regulated.

As if this strong case law precedent weren't enough, in July, 2000, Congress passed the Religious Land Uses and Institutionalized Persons Act (RLUIPA).  Some of you have heard of RLUIPA, but apparently think the gist of it is that any religious activity is permitted anywhere.  That's not true, although the law does speak about local governments not restricting religion in a burdensome way (as opposed to a trivial way) unless there is a compelling government interest.

Actually this federal law was aimed somewhat specifically at making sure that zoning and related land use controls were not oriented toward putting up discriminatory barriers against a particular religion or denomination, or at keeping out all new religious uses by not allowing any new places of worship to have an opportunity to locate a particular jurisdiction. 

But these provisions are far from saying that religious uses (places of worship, auxiliary uses such as day care or social services, and schools) can locate in any zoning district, and do so without further regulation. 

The law also does not restrict the use of special use permits, conditional use permits, special exceptions, and other such methods, as long as the regulations are pertinent to a real governmental interest in regulating potential impacts of the religious use. Of course, permits could not be denied on a discriminatory basis (favoring one denomination over another, for example, or favoring existing land uses over new congregations).

Another key element of RLUIPA is that religious uses cannot be treated more restrictively than non-religious places of assembly, such as clubs, meeting halls, and the like.  

RLUIPA has led to numerous further court cases, many of which have reinforced the legality of a particular church zoning provision, but also rewarded local governments for using the least restrictive means possible to deal with religious land uses.

Advice to Neighborhoods About Religious Land Uses

If you are facing an unwanted rezoning to permit a church, or a special or conditional use application, please be mindful of the legal risks to your municipality of denying the request. Make your objections as reasonable as possible, based on fact and projection as much as possible.

Make sure all your speakers avoid any hint of prejudice against the particular religious practices or beliefs, and don't be anti-religion. Stick to predicted traffic or other measurable impacts appropriate for zoning discussions, and hope for the best.

Think strategically too. If the special use permit is granted, you are going to have a new neighboring institution whose cooperation you want. You also want people who drive through your neighborhood to the new place of worship to react favorably.

So in a net sense, most congregations are assets to their communities, especially if the neighborhood greeting has been civil.

Land Use Zoning Advice for Congregations

From the congregation side, it does not make any sense to alienate the surrounding neighborhood.  That kind of attitude could result in your cars being vandalized while you are inside.

The gas cap of my car was stolen while I was parked at church, and some dirt added to the gas tank. Yes, this could happen anywhere, but maybe the vandal was annoyed with the singing!

So while church zoning law is all on your side if you are a congregation, think of the human relations aspect and do what you can to meet community objections. It's also just neighborly to meet zoning requirements such as the minimum required setback from the property line, even if an attorney tells you that a court might hold that you wouldn't have to.

A "Best Practice" Recommendation

In sum, it's best for municipalities to require a conditional use permit for every place of worship. Allow church zoning in a wide variety of zoning districts, however.

Some will want to be located in a highway zoning district, some new congregations will find space in a building in need of a shopping center renovation, and some lower-income churches will be delighted in an inexpensive but grungy industrial space. Of course, it also follows from what we are saying that if you have even one church in your historic downtown, you should think very carefully about whether it may be found to be illegal if you deny a conditional use permit downtown for a congregation that has never had one before.

Make sure that the conditions could not be interpreted as discriminatory toward a particular religion.

If snake handling or goat sacrifice is involved, certainly attempt to think of a solution that will honor the sensibilities of others, but be careful not to phrase your "condition" in a manner that effectively prohibits the practice. Don't single out the snakes or goats. For example, your conditions might be:

  • All animals at this location must arrive and leave in cages or other method of confinement, and must be remain within the cages, the building, or a completely enclosed courtyard at all times.
  • Animal sacrifices outdoors must be completely screened from view from adjacent properties.

But then, when a Christian congregation indicates they will have a donkey outside for a Christmas display or Palm Sunday re-enactment, you must remember to treat everyone alike. If not, you may be violating the equal protection clause of the Constitution.

In downtown areas, transit-oriented development, or mixed-use zoning districts, attempt to negotiate with the congregation the features you need to keep those districts viable.

You might think we're strange to talk about places of worship in a MXD or TOD zoning district, but we think that's a great idea, especially in the slow commercial market. In fact, you could think of flexible space that would accommodate more than one congregation.

When approached by a place of worship for a conditional use permit in one of these high-density or high-intensity zoning districts, talk with the congregational representative about making the building highly versatile.

If a congregation proposing to locate in one of these high-activity areas is receptive, help them expand their imagination about how they could program during hours that represent lulls for other uses.

Sunday morning services are great for enhancing the principle of 24/7 activity in a commercial area that lacks activity on the weekends, but congregations also might be help fill evening hours. They also can fill social needs within the community; many congregations already provide child care and preschools. Adult day care and evening teen recreation would be other good uses.

In a newer community or where new buildings are contemplated, promote multi-congregational use of the same building, just to keep the activity level steady and to reduce the carbon footprint of building such spaces!

Adaptive re-use of other vacant buildings, including empty big box stores or strip centers, also is a great contribution a place of worship could make to their community.

In matters of church zoning, try for voluntary compliance with the spirit of the zoning district, and agree if the municipality wants to impose appropriate conditions. If sued, your municipality could lose, so keep it friendly.

Communities that require architectural review for all construction and building conditions should be quite careful that any actions concerning a place of worship could not seem to a judge to be discriminatory toward the particular religion. Most judges won't want to hear about the building mass being too grand for the neighborhood, steeple height being out of scale, the inappropriateness of a gold dome, and such.

Again, try your negotiation and persuasion skills, but if talking is unsuccessful, you're likely to lose if you're sued because you deny a church zoning case.

Many of You Have Questions, It Seems

Visitors have asked so many questions about church zoning.  We already have answered questions about church services in a home or in a single-family zoning district in general, a possible church next door, whether a church's property can be used for something else, how many people can attend a residential fellowship, and using a building as a church.  Finally we did a more church zoning questions page.  If you honestly can't get an answer to your question by looking these over, feel free to ask a zoning question, but usually we will incorporate the answer into the "more church zoning questions" page rather than creating a new page.

Read More About Locations for Congregations and Their Activities

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