Town Uses Religious Act as 'Shield' in Court

WASHINGTON – A Maryland city is apparently the first in the country to defend itself in court by invoking a law aimed at protecting churches' rights.

The Religious Land Use and Institutionalized Persons Act of 2000 prohibits governments from imposing land-use regulations that would put "a substantial burden on the religious exercise of a person."

The act also allows governments to change land-use policies or grant exemptions to keep from running afoul of the first provision.

Even though they were not happy about it, officials in Frederick, Md., said that because of the first provision of the act, they granted Frederick Presbyterian Church's request for an expansion. Now, they are citing the second provision to defend themselves against a lawsuit by the church's neighbor.

"We find ourselves in a very interesting situation. We don't want RLUIPA — we want to handle our own zoning practices," said Heather Price Smith, chief legal services officer for the City of Frederick.

She said she expects the act will eventually be deemed unconstitutional.

Until then, however, the city will cite the act in its defense.

"This looks like this is the case of first impression," she said of the city's use of the act.

Experts in the field agreed.

The chief litigation counsel to the Rutherford Institute, an organization that provides legal services in defense of religious and civil liberties, said he has been watching the Frederick case and the act very closely.

Steven H. Aden said this is the first time that he has seen a city use the act as a defense.

"The city evoked RLUIPA and is using it as a shield, rather than a sword," said Aden, who calls the case "intriguing."

The case began in 1998 when Frederick Presbyterian sought zoning approval for an addition on the back of the church. But because the church is in a downtown historic district where space is limited, it was impossible for it to meet a zoning requirement that it add 50 to 100 parking spaces.

After RLUIPA was approved, however, the city agreed in March 2002 that the church could build the addition without meeting the parking requirement.

That sparked a lawsuit against the city by Frank Gallart, a church neighbor. His attorney, Leslie Powell, calls the church's plan a "monolithic addition."

The addition would include an office, social hall, nursery and handicapped accessibility for the sanctuary. The additions would come within six feet of the property line, putting Gallart's "enjoyment of his property . . . at risk," Powell said.

Gallart did not return phone calls, but his complaint says he would be "adversely affected by the additional traffic created by the addition, as well as by the change in the set-back."

"If construction is allowed to proceed before resolution of this matter, plaintiff's due process right to object to the waiver and obtain a hearing will be permanently lost," the suit says.

Gallart is asking that the city and church be barred from waiving the provisions of the zoning ordinance.

But the church's supporters said the exemption is needed and reasonable.

"The church is in an historic area, and it doesn't have the structural aspects for persons with disabilities," said Christine Lockhart, an attorney at the Becket Fund for Religious Liberty, which is helping the church in its defense.

She said that the way the church is now, caskets have to be tilted when carried in the narrow hallway.

"You can just imagine how upsetting that would be for the families of the deceased," Lockhart said.

The Rev. Ginger Memmott, pastor of the church, said that her 250-year-old congregation is "waiting with hopeful hearts."

"It's been an ongoing issue, we have tried to be patient, go by the books, and trust the system," Memmott said. "I get worn down at times, but all I have to do is go to see a member who was denied access to the church and it refuels me to continue the fight."