In Churching NIMBYs: Creating Affordable Housing on Church Property, Professor Patrick E. Reidy, describes how churches around the nation are seeking “theologically and morally sound uses for their underutilized property,” in particular, by building affordable housing to meet the material needs of the un- or poorly-housed.
Religious institutions are huge urban landowners. For instance, across Cook County, Illinois (home of Chicago), the Roman Catholic Archdiocese owns a staggering 5,500 acres; 880 within the city. Two-thirds of these acres are situated in areas zoned exclusively for single-family homes. Historically, the church was not in the business of constructing housing or using its property to provide permanent housing. Consequently, much of this land is used as places for people to park their cars.
Alas, carrying out this spiritual mission for churches to use their property holdings to advance theological and moral missions may be impeded by temporal land use regulations. Professor Reidy strives ably to make the case for some sort of religious dispensation for use of church land for the construction of affordable, multifamily homes in zones that otherwise prohibit such use. He appeals not to an almighty, but to the earthly system of laws, in particular the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, et seq.
He admits that “religious liberty” is a novel response to exclusionary zoning but makes a solid case for it.
The advantages offered by these laws is that they place on the municipality the burden of justifying land use decisions and regulations under a heightened level of judicial scrutiny. Freedom of religion under the First Amendment, as a fundamental right, is subject to the law’s highest protection.
RLUIPA adds to this protection in the land use context by invalidating decisions and regulations that impose a “substantial burden” on religious exercise, unless there is a compelling governmental interest and the regulation is the least restrictive means of furthering that interest. Professor Reidy believes that not only can these laws check official governmental acts, but they may also deflate the air of NIMBY neighbors whose views often animate the stance of the decision-making politicians.
Professor Reidy claims that building affordable housing is a form of religious exercise, not unlike running day care centers and operating homeless shelters, which many churches do. While it goes beyond worship and ritual, the definition of religious exercise under RLUIPA is broad and fluid, to include ancillary activities, whether or not compelled by, or central to, a system of religious belief, including the use, building, or conversion of real property for religious exercise.
Even as repurposing existing structures or constructing new affordable housing might be seen as a religious exercise, whether enforcing a single-family zoning ordinance against the church imposes a substantial burden on that exercise is a more complicated issue. It may be if the construction of affordable homes is honestly driven by its religious mission and to accomplish this end, the church would have to acquire property elsewhere or engage in a land swap at a loss. In determining substantial burden, courts have focused on the significance of the activity to the institution and the material cost imposed by the regulation or decision.
Finding a substantial burden does not end the inquiry since the government act might yet be upheld if there is an underlying compelling governmental interest. Whether density limits, ostensibly supported by the usual host of evils attributed to multi-unit dwellings,1 meets the test is difficult to predict. This is largely because, under Ambler Realty, land use regulations are reviewed under a rational basis test, except where apparently racially exclusionary. See e.g., Mhany Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581 (2d Cir. 2016) (finding zoning had been motivated, at least in part, by discriminatory animus).
Professor Reidy is not asking for a categorical “religious liberty” exception, but instead seeks indulgences for actions based on sincerely held religious beliefs to do societal good. But, in granting this permission, the planners would have a duty to ensure that no religious strings are attached to the affordable housing. As landlords, the church would be subject to the same rules that apply to non-religious entities, including anti-discrimination provisions that protect a host of personal characteristics.
On a larger theoretical plane, if religious institutions can obtain exemptions to build housing wherever they own land, why not also exempt secular institutions that believe that housing is a human right? The right to housing is embraced by the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.
Sadly, in this country, it is only the taking of property by the government that is protected by the Fifth and Fourteenth Amendments as a negative right. The closest we came to recognizing housing as an affirmative right, was a pronouncement by the New Jersey Supreme Court in South Burlington County NAACP v. Mt. Laurel, 336 A.2d 713, 724 (N.J. 1975), that “every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing.”
As Professor Reidy’s article suggests, the main obstacle to making housing affordable and accessible is the century-old system of community design that requires large lots, that is costly and that rigidly separates, not just housing types, but people, based on race and income.
More and more state governments are acting to remove some of the land use power from local governments and many have specified housing mandates. This article helps us to see how we can use existing federal laws to open up private land for private development of housing.
- The negative attributes attributed to multi-family dwellings include: decline in home values, more traffic, loss of neighborhood aesthetic and character, environmental degradation and impedimentsto historic preservation, although the need to protect the family from the “parasites” of multi-unit dwellings as noted in Ambler Realty v. Euclid, 272 U.S. 356, 394 (1926) has been roundly criticized in the literature.
