By Seth Richardson
Victories against zoning authorities are few and far between these days. The right of a citizen to the reasonable use and enjoyment of his property has been thoroughly suppressed by the creeping socialism of zoning and land-use controls in recent years.
The good news is that the galloping socialists in Boulder County have just lost a major case that may help turn the tide for religious freedom and property rights throughout Colorado.
On Tuesday, March 31, 2009, U.S. District Court judge Robert Blackburn ordered Boulder County to approve a development application submitted by the Rocky Mountain Christian Church in 2006, saying, “The record in this case does not demonstrate conclusively that RMCC’s special use application violates the land use code.” The judge’s ruling closed the case, decided in favor of the church by a jury in November 2008.
Zoning has a long and checkered history in America. Originally designed to separate incompatible uses such as heavy industry and residences, and to control the height, bulk and spacing of structures in urban environments, zoning law has morphed into a many-tentacled monster that today, in many places, invades the most fundamental uses of private property merely because it might annoy a NIMBY neighbor. Local zoning boards have created entire counties that are little more than enormous covenanted subdivisions that use the mace of state as a blunt instrument against property owners. And no place in the United States better exemplifies the overreaching, intrusive and offensive practice of micro-managing land-use than the People’s Republic of Boulder. In 1955, Boulder County’s land-use code was all of 16 pages long. Today it’s more than a thousand pages.
In Boulder County, there is almost no activity that the county Commissioners have not chosen to regulate. They can tell you what color your house can be, where exactly on your lot it may be built, the size and orientation of your windows, even the type of plants that you must put around your house and maintain in perpetuity. Nor is their development code the only grip they maintain on private property. Want to have a wedding reception or a party with more than 25 people? Beg a permit of the county. Want to hold a private religious service in your home? Nope, no way, not if your neighbors object.
The county denied RMCC’s application in 2006, saying that the church’s plan to expand the current 106,000 square foot campus by an additional 132,000 square feet to meet the needs of it’s expanding congregation and ministries was “not in harmony” with the “character” of the rural area where the church was located and was an “over-intensive use.”
But throughout history churches have defined the character of a community, not harmed it. Most communities grew up with the church as the centerpiece of the town. In Europe, the very identity of many great cities is inextricably intertwined with the great and beautiful cathedrals and churches of antiquity. Saint Paul’s, Saint Peter’s, the cathedral at Chartres are all engineering and architectural wonders of the world, drawing millions of visitors each year. But in Boulder County, when Sacred Heart of Mary, the first Catholic church in Boulder County, built in 1873, applied for a permit to expand by about 10 rows of pews in order to meet the needs of a larger congregation in 1999, the Commissioners allowed the expansion, but then changed their mind after construction was completed and required the church to remove the new pews and turn the expanded area into a foyer, thus limiting seating to the original capacity. The excuse used was that the expanded seating might result in too many car trips on the adjacent South Boulder Road, now a 4-lane highway. New highway, no new pews.
Since the emergence of the “mega-church” phenomenon many zoning agencies nationwide have shown increasing hostility towards large church campuses, routinely describing them as “incompatible” or “over-intensive use,” along with other excuses used to deny religious freedom, even in private homes. The offenses became so egregious nationwide that in 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) to try to control the abuse of land use and zoning regulations as a tool for religious discrimination and suppression.
Congress found a “pervasive pattern” of abuse of the First Amendment right to freedom of assembly for religious purposes by local zoning authorities nationwide, and that religious assemblies cannot function without the physical spaces and places of worship and congregation, and that the right to acquire such spaces is a core adjunct to the First Amendment. The law, 42 U.S.C. 2000cc, prohibits the imposition of a “substantial burden” through land use regulation on the religious exercise of a person, group or institution unless there is a “compelling government interest” for the regulation and it is “the least restrictive means” of achieving the compelling government interest.
The Boulder Daily Camera quoted Pearlman as saying, “This law, as written, may very well require us to elevate religious uses above everything else.”
Yes, Commissioner Pearlman, that’s exactly what it does. And rightfully so, as Gazette opinion page Editor Wayne Laugesen wrote in a column for the Boulder Weekly in 2007, “This country was founded as a place to freely pursue belief in a deity without fear of repercussion or obstruction. It was founded as a country in which belief in deity trumps secular government interests, such as “neighborhood character” and car trips—two local obsessions that appear as flotsam when contrasted with the intellectual integrity of First Amendment liberties.”
And the U.S. District court, along with the U.S. Department of Justice, which enforces RLUPIA, agrees. The DOJ filed motions in favor of the church in February. Acting assistant attorney general Michael Hertz wrote, “RLUIPA does not operate as an impermissible preference for, or endorsement of, religious organizations, as the county argues.”
Boulder County thinks that the aesthetic concerns of the County Commissioners and the few neighbors of the rural church are a “compelling government interest” which justifies interfering with First Amendment-protected religious worship. Responding to the judge’s ruling, Commissioner Ben Pearlman said, “I think we had a strong case and still do.”
The fundamental cognitive dissonance evidenced by the Commissioners is their complete failure to understand that there are things that are more important to the citizens of this country than three individual elected official’s aesthetic tastes. The core of the county’s argument was that the church was too big already and shouldn’t be allowed to expand. But religious liberty demands that places of worship be allowed to grow with the growing needs of the congregation, not be arbitrarily restricted by the tastes of elected officials.
We can all be thankful that the overweening authoritarianism of public servants more concerned with car trips and aesthetics than fundamental civil liberties have been defeated, at least for the present. The Commissioners could appeal to the Supreme Court, and I for one hope they do, because of all the cases adjudicated under RLUIPA in recent years, this is one of the strongest, and I would welcome a Supreme Court affirmation of religious liberty over NIMBY neighbors and fascistic bureaucrats.
© 2009 Altnews