Protesting on religious grounds- More religious groups seeking land-use resolution in court

By Jo Mathis

Legal News

In tough economic times, municipal leaders may be tempted to favor tax-generating property development over the construction of tax-exempt places of worship.

But doing so may spark a fight they can't win.

An increasing number of religious organizations that sue municipalities over religious land use are winning their cases, according to a Bloomfield Hills attorney who specializes in land use and zoning cases.

"The law is clear that local governments cannot zone religious entities out of their communities because of the alleged loss of tax base," said Daniel Dalton, a partner and co-founder at Dalton Tomich & Pensler PLC of Bloomfield Hills, which specializes in such cases across the country. "That is a violation of the religious organization's civil rights under the First Amendment and a violation of The Religious Land Use and Institutionalized Persons Act (RLUIPA)."

Churches, temples, synagogues, mosques and other religious organizations should know that there is a law that gives religious entities the ability to challenge local government in the denial of the ability to worship, he said, citing the First Amendment Free Exercise Clause and RLUIPA.

The RLUIPA has been in place for 11 years, and while the contours of the law are not completely defined, courts now recognize that the previous attempts to keep religious entities out of the community, or expansion of existing religious uses, is illegal and unconstitutional, Dalton said.

"Nonetheless, because of the loss of tax base, local communities still engage in conduct to deprive the religious entity from using their land for religious worship hoping that they will not sue," said Dalton. "And when they do sue, the religious organizations frequently prevail because the law is on their side."

Although Dalton's practice is based in Bloomfield Hills, he's worked with temples, churches and other religious organizations across the country in civil rights land use suits against municipalities.

Dalton represented the Salvation Temple Church in its prevailing case against Hazel Park a few months ago.

And he recently represented a Hindu faith community based near Philadelphia that won its battle to build a 27,000-square-foot temple after the West Pikeland Township denied its petition to build the temple as proposed. The township had said the temple could be only 5,000 square feet and imposed numerous other limitations on the property.

Religious land use became a hotly contested issue last year when the Ground Zero Mosque was debated.

Dalton said that the religious organizations he's represented are typically surprised to learn they must file suit simply to build on land they already own.

"I have yet to encounter a religious entity that has wanted to sue for the right to use the land it owns for religious purposes," he said. "However, when faced with no other option and with the very existence of their religious communities at stake, these organizations are forced to file."

While arguing religious land use cases across the country, Dalton has encountered a range of counterarguments from the defendant municipalities.

He argues the cases based on fundamental fairness. That means if a local community is going to allow secular assembly within its boundaries such as schools, theaters, fraternal halls, etc., then they must allow religious assemblies.

To Dalton, the right to worship is a fundamental freedom that should be vigilantly protected in a country with an historic and legal tradition of respecting religious worship

"I acknowledge that this right is not absolute, and there is, and should be, limitations to it," he said. "Yet I believe that the right is significant and important to all religious entities."

Religious land use rights do not give religious entities an upper hand in zoning; rather, it levels the playing field for religious organizations, he said.

Nor is the issue going away any time soon, he predicts.

"I don't see the underlying economic trend behind these cases dissipating any time soon," said Dalton. "While property tax revenues remain low, we're likely to see a continued increase in this behavior from municipalities across the country."

Published: Tue, Apr 19, 2011