Citizens in one Boston, Massachusetts community are standing up to construction of an enormous Mormon Temple in their neighborhood. A state law exempts religious organizations from many zoning regulations which apply to private individuals, secular groups and businesses. Is this another example of special rights for believers?

hree residents of Belmont, Massachusetts have filed suit charging that their constitutional rights were violated when local officials gave a thumbs- up to the Church of Jesus Christ of Latter-day Saints (Mormons) to construct a 69,000 square foot temple on nine acres in the middle of a residential neighborhood.

    The challenge focuses on a statewide zoning law enacted in 1950 that exempts certain categories of nonprofit organizations, including churches or other religious groups, from local land use restrictions. The nine-page lawsuit, filed Tuesday afternoon in U.S. District Court, would return to Massachusetts communities the power to apply zoning laws to those religious organizations, as they are currently administered regarding businesses, private individuals and secular groups. Michael Pierce, co-counsel for the plaintiffs' told reporters, "It would give towns and cities the ability to review ... zoning bylaws and decide in what zones a (religious) building could be built and how heavy they want to regulate it."

    At the center of the dispute is a 1997 decision by the Belmont Zoning Board of Appeals to approve construction of the "Boston Temple" in the midst of a residential neighborhood. Belmont is located about seven miles northwest of Boston; since plans were announced for construction of the edifice, the project has been plagued by legal challenges. On May 19, 1997, six neighbors filed suit in Massachusetts Superior Court protesting the decision of local zoning officials to permit construction of a 139-foot steeple, which is more than double the proscribed height limitation for residential neighborhoods. Church officials immediately proceeding with construction, though; one community opponent termed that move "a tactic of intimidation and an attempt to change the momentum in their (LDS's) favor."

    The church had scaled back its original design, which called for a three- story building of 94,100 square feet with six spires located on Route 2. A local church official told the Boston Globe newspaper at the time that the move was consistent with LDS religious practices to "better meet neighbors' concerns." But many in the Belmont area were still not pleased, and cited increased traffic, noise and lighting issues. Some pointed out the history of how the Mormon church even got approval for its original smaller church on the property. In the wake of the 1997 action, one citizen told the Globe, "Once the building is up, the neighbors lose ground... We expect this might happen, even though they (the church) kept telling us they were negotiating with us as good neighbors, because this is how they got their meetinghouse building over the town's objection 20 years ago."

   "In that instance, even though they were denied a parking lot permit, they build the structure and then sued successfully for the parking lot."

IMPLICATIONS FOR
RELIGIOUS LIBERTY LEGISLATION

   The Massachusetts case highlights the First Amendment issues which have emerged in recent decades which, increasingly, pit local governments and neighborhoods against the expansion plans for churches, temples and other religious organizations. Indeed, zoning has emerged as one of the hot-button reasons for why church groups are pushing legislation such as the Religious Liberty Protection Act, modeled on the constitutionally discredited Religious Freedom Restoration Act of 1993. In 1997, RFRA was struck down by the U.S. Supreme Court in the historic BOERNE v. FLORES decision; it involved neighborhood zoning and preservation issues which arose when the Archdiocese of San Antonio sought a demolition permit to tear down a 70-year old structure and construct a newer and larger worship facility. Writing in his opinion in BOERNE, Justice John Paul Stevens noted that the Religious Freedom Restoration Act was a violation of the First Amendment's establishment clause, and provided religious organizations with legal remedies which "no atheist" could ever obtain.

    Echoing that sentiment, attorney Michael Pierce told The Freedom Forum online, "We just can't get around the sense that this zoning law is clearly an aid to religions."

    In their suit, plaintiffs argue "By specifically exempting religious institutions from all zoning use requirements, the Commonwealth of Massachusetts has provided a significant advantage to religious institutions not enjoyed by non-religious institutions... Because they are exempted from all zoning use restrictions, religious institutions are able to build on lots ordinarily unsuitable for similar projects, thereby providing a distinct and substantial economic advantage."

    The legislation which exempts religious organizations is known as the Dover Amendment, a statute which plaintiff's argue violates the establishment clause prohibition concerning the entanglement of church and state. The Dover Amendment states, "no zoning ordinance or bylaw...shall...prohibit, regulate or restrict the use of land or structures for religious purposes...; provided, however, that such land or structure may be subject to reasonable regulations concerning the bulk or height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements."

SPECIAL RIGHTS FOR RELIGIOUS GROUPS

    Any development, whether it involves a church, shopping center or housing complex, impacts the complex matrix of factors which affect taxes, property values and "quality of life." Zoning and other land use covenants have often been seen as the best method of reconciling different interest groups, from business developers who need commercial traffic in order to succeed, to residents who are seeking a low-impact area to live in.

    The Dover Amendment, however, has the effect of bypassing that mechanism; in addition to aiding religion, it may also have the secondary consequence of "a taking," an action whereby government policy improperly confiscates value or possessions. Church construction -- especially a "mega-church" project like the Boston LDS Temple -- can impact traffic, noise, lighting and other factors all of which affect property values. And declining values brought about by such actions, when facilitated by the government, could well constitute "a taking" in the form of declining values.

   The overarching issue, though, is whether the State of Massachusetts is violating a policy of "strict neutrality" in respect to religion by facilitating the construction of churches, temples or other faith facilities -- and in so doing discriminating against secularism, business and private individuals. This is also a key question in regard to the Religious Liberty Protection Act, that would essentially federalize land use and zoning issues when they involve religious groups. The Massachusetts law, and RLPA have the effect of benefiting religion over nonreligion, actions criticized by Justice John Paul Stevens in his BOERNE opinion, and even earlier, as in the 1970 case of WALT v. TAX COMMISSION. There, the late U.S. Supreme Court Justice William O. Douglas warned "that neither a State nor the Federal Government 'can constitutionally pass laws or impose requirements which aid all religion against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.'"

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