Ongoing fights over zoning for religious buildings

The Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed in 2000 and still there are numerous local battles between local governments and religious groups who want to use or build a structure for religious purposes:

By the time they take on a zoning challenge, many religious groups are already struggling to find and retain members, and to get by on shoestring budgets. Without an adequate place to gather, they miss opportunities to assemble in study, service, and prayer. The stakes are high for towns, too. Churches, synagogues, and mosques influence life well outside their walls: People who belong to religious institutions are more civically engaged than their secular neighbors. They are more likely to serve on school boards, volunteer at charities, and join clubs. In the absence of these institutions, communities can become fractured and isolated. Neighborly infrastructure decays…

Many of the groups that wind up at the center of RLUIPA cases have it worse than North Jersey Vineyard. Cases can stretch on for decades, and the majority of religious organizations end up losing: According to Dalton, who wrote a book on RLUIPA, roughly 80 percent of RLUIPA claims filed in federal court fail. “This is a very hard statute to follow,” he said. “For the inexperienced, it is easy to lose.” An untold number of religious groups never make it to court at all, either because congregations don’t realize they have special protections under the law, don’t know how to file a claim, or don’t have the resources to pursue a case. Many simply walk away from purchasing a property when they discover that it is not zoned for religious use.

North Jersey Vineyard was also spared the ugly bigotry underlying many zoning disputes. Other than a few awkward comments confusing Catholic and Protestant styles of worship, officials in South Hackensack didn’t seem to oppose North Jersey Vineyard’s purchase based on the congregants’ faith. Often, though, zoning books are wielded by intolerant or ignorant officials; about half of RLUIPA disputes involve religious or ethnic minorities, according to Dalton. As a participant in a Department of Justice listening session recently told government officials, “People don’t come into hearings now and say, ‘I hate Muslims.’ They say, ‘The traffic is going to be terrible on [Fridays,]’” when Muslims gather for Jumah prayer…
This is where the practicalities of land-use law shade into something more philosophical: Where is the line between preserving a community’s character and preventing its evolution? While it’s easy to sympathize with a church that can’t find a space in which to pray, it’s also easy to imagine aggrieved residents sitting in Sunday-morning traffic or searching in vain for parking near their house.

My own take on this is similar: it is not as simple as saying that most communities dislike certain religious groups (though some requests certainly gain more attention – I’ve seen more cases in the last ten years or so involving Muslims and orthodox Jews) as many times the concerns raised by local residents and governments are similar to those raised for any development project. The difference is here that religious groups have certain legal options open to them that are not available to non-religious development projects.

Almost all suburban residents’ concerns about redevelopment expressed in one meeting

Naperville is pursuing a redevelopment project just south of the downtown train station and a recent public input meeting provided almost all the typical suburban concerns about redevelopment:

Land use and traffic are emerging as top concerns about redevelopment plans for 5th Avenue near the Naperville Metra station.

But close behind are issues of stormwater, green space, pedestrian access, the commuter experience and parking…

Promises to take time understanding and synthesizing resident wants and concerns seemed to only somewhat satisfy residents at Ryan Companies’ fourth group input session Friday afternoon. Some who attended said they want very little to be built on the land, which they see as a solution to flooding, traffic congestion and a lack of nearby park space.

“I don’t want high density,” neighbor Dana Aldrich said. “Our schools are already crowded.”

These are all common concerns. Too much traffic. Water issues. Parking. A desire for more green space. The city or developer not taking the concerns of residents seriously. Not increasing the burden on local services (and presumably property taxes), particularly schools. The only thing missing? The suggestion that property taxes will be negatively affected. Given this particular location and wealthy community, it is unlikely the proposed project would reduce property values – but realities do not always stop suburban residents from raising this specter.

It is also interesting to consider how suburban governments can proceed if residents tend to raise the same concerns almost regardless of the project. Something is likely to be done with this land since a good argument could be made that it is not serving the community as well as it might. (Redevelopment can incur new costs but it can also generate new tax revenues.) Development can be tweaked to try to assuage concerns. However, at some point, community leaders may just decide to override residents’ concerns. Perhaps the concerns are limited to a small number of vocal residents. Perhaps they would argue that as leaders they have the greater good of the community in mind.

Fighting over affordable housing in Cedar Rapids

Lest you think NIMBY responses to new housing are limited to expensive cities, here is a case of opposition to 45 affordable housing units in Cedar Rapids, Iowa:

Neighbors said they didn’t oppose affordable housing per se, but that they feared the burden of the construction on their area, citing issues such as an increase in traffic and car accidents, potential flooding, and a lack of walkability for incoming residents. The developer said it had selected the site because it would immerse residents in a middle-density community with access to family amenities, including a bus stop, parks, and an elementary school.

At first, it looked like NIMBYism had prevailed: The petition and complaints convinced the city planning commission to vote against the request to rezone the property at an April 2016 meeting. But a few months later, the proposal was revived, becoming a test of what it would take to defeat neighborhood concerns and develop affordable housing that was integrated into rather than segregated from low-poverty communities.

That’s when the real animosity started to emerge, according to Phoebe Trepp, the director of Willis Dady, the local homeless services organization that would provide assistance at the development…

City leaders are also interested in spreading affordable housing throughout the city, rather than clustering it in the poorer southeast quadrant. Susie Weinacht, a City Council member at large, says that city staff want “housing options available throughout the community.”

This sounds fairly typical. A decent-sized community has difficulty providing affordable housing as well as dealing with homelessness. The city wants to spread the affordable units throughout the city so that poorer residents are not concentrated in one area (and perhaps to limit political opposition if one area had to host more units). Residents are not happy about this. They raise all sorts of common concerns about new developments – traffic, too much density near single-family homes, water issues, negative effects on property values – while also hinting at issues of race, ethnicity, and class (not cited in the excerpt above but more details are in the full article). A public debate ensues, one side wins, and the other side is not happy.

Is there a better way to do this whole process? Toward the end of the article, an official says that affordable housing initiatives work best when the support is from the grassroots (rather than planned by local or larger governments). This is probably true. Yet, how does one convince working-class to upper-class residents that it is in their interests to live near affordable housing? This is an incredibly tough sell to make to many Americans.

It is also worth asking about how the neighborhood fares within five, ten, twenty years of the construction of affordable housing units. Are the fears of Cedar Rapids neighbors unfounded? Does a denser development significantly alter the character of the community and drive existing residents away? Having some of these facts may not matter to some residents but showing some data could help ground the discussions in reality rather than emphasizing possible negative effects.

Crossing the line into NIMBYism

Author Margaret Atwood is opposed to an eight story residential building that would back up to her home in pricey Toronto. In some exchanges on social media, Atwood was accused of a NIMBY attitude. This raises an interesting question: when does one’s actions move from normal concerns about a home or neighborhood and into NIMBYism? Here is a description of Atwood’s concerns:

As the debate escalated, Atwood threw shade at a prominent local urbanist, accusing him of being in the pocket of developers, and went toe-to-toe with the architecture critic of a major Canadian newspaper.

The exchanges were confusing because, historically, Atwood has championed urban issues. She fought cuts to the Toronto Public Library under Mayor Rob Ford and opposed a plan by the University of Toronto to cover one of its historic green spaces in artificial turf.

In actuality, the opposition Atwood officially registered with the city was muted compared to those of others, particularly her husband, author Graeme Gibson.

“[The condo] hover[s] close to a brutal and arrogant assault on a community that has been here since the 19th Century,” he wrote in an email to the local city councillor.

In her email, Atwood focused on potential damage to several trees with roots in the development area, and later insisted on Twitter she would prefer affordable housing and a community center in the building.

In really expensive markets, perhaps anyone opposed to new housing units could be accused of NIMBYism. In many cities, there is a shortage of affordable housing and, as the article notes, it seems like wealthier residents do not want to live near cheaper housing and they have the clout to contest development. Additionally, it is difficult to imagine how sufficient housing units could be provided without making major changes to neighborhoods and cities as a whole.

But, is there also a way that NIMBYism is particularly expressed? This particular article hints at three possible distinctions. First, her husband used particular language. Perhaps taking a haughty or dismissive tone does not help. Second, Atwood has fought for the people regarding other city issues so perhaps she is not the average, out-of-touch wealthy resident. Third, Atwood may be trying to make a more nuanced argument – not opposed to the building but opposed to its uses – but this is difficult to relay through social media and it may not matter in a city like Toronto where housing is a controversial issue.

For better or worse, NIMBY is in the eye of the beholder. When arguments about land use and personal property arise, they are often heated. Accusing an opponent of NIMBY and the related idea that they are trying to keep people away from what they already have is a common tactic. Whether this application of a label helps the process in the long run is another matter to consider.

The nuisance of Apple’s new HQ vs. it can help double your property values

This article details the complaints of neighbors of the new Apple headquarters facility in Sunnyvale yet ends with this tidbit about property values:

Some worry that the neighborhood of mostly single-story homes built in the 1950s and ’60s is living on borrowed time as long-time residents sell their homes to newcomers.

Housing values in the neighborhood have doubled since 2011, according to Art Maryon of Intero Real Estate Services. And in the first six months of 2017, 24 houses in Birdland sold on average at $1,690,350, according to Maryon.

The increase in property values mirrors what has happened in the rest of Sunnyvale, and across the Bay Area, but Birdland’s proximity to Apple Park makes it even more desirable.

“Many say we should just be happy that Apple is raising our property values,” said Birdland resident Debby MacDonald. “This doesn’t do me much good unless I plan to sell. And I am not sure what we have had to put up with and will continue to put up with is worth the money.”

This presents suburban residents with quite the dilemma: will NIMBYism or raised property values win out? Both are goals for the average suburbanite. They resist significant changes to the character of their community as this can disturb their quality of life through altered scenery, increased traffic, and a change in neighborhood activities. Ultimately, the changes may lower property values. Yet, this massive headquarters may change their neighborhood and significantly raise property values since it houses many employees and is home to one of the most desirable brands in the world.

Someone needs to make sure to follow up on this in a few years or ten years and find out how many residents are left. And even if they cash out – some because they want to and others because they have to (increased housing values can also lead to other increased costs) – those who leave might feel a real sense of loss.

San Jose residents don’t want tiny houses for the homeless nearby

Several cities have looked into tiny houses for the homeless (examples here and here) but residents in San Jose don’t like the idea:

But finding sites for the tiny home villages — which could house up to 25 people — proved to be a major challenge. The city looked for publicly owned sites that were a half-acre in size, near transit and with access to utilities. But after an outpouring of complaints, San Jose officials added even more restrictions — 100 feet away from homes and creeks and 150 feet from schools and parks, leaving just a handful of potential sites.

“It’s a shame that we didn’t have more viable opportunities from this list,” said Ray Bramson, the city’s acting deputy director of housing. “But we were constrained because land is so hard to find in this community. Some of the major concerns that we heard were about the potential impacts, from traffic to noise to new people coming into the neighborhood. We’re trying to be respectful of neighbors and the community.”…

“They’re almost segregating homeless families from existing neighborhoods and that’s not what San Jose is about,” Campos said. “If we can do this right and not give in to NIMBY-ism, then we set the path for other cities in California to address the homeless crisis in their own communities. This sends the wrong message.”…

But there’s push-back on those remaining sites as well. Councilman Johnny Khamis said at least 30 people came to his “open house” office hours last Saturday to voice concerns about the tiny homes site at Branham Lane near Monterey Road in his district. Residents were concerned about security and the “vetting process for the homeless,” he said, fearing crime, especially related to drugs and assaults, will rise.

How can a city address homelessness if few local residents want to live anywhere near the formerly homeless? Cities are sometimes criticized for sending the homeless out of town but it sounds like this could be an outcome here through restrictive options without officially sending them away.

There are several options available here but they aren’t that good. Homelessness, like many urban issues, is not just present in the big city but rather is a regional issue. Could multiple communities chip in? (Unlikely.) Perhaps the city could loosen their restrictions – such as needing a half acre of land – since these are unique housing units. (The neighbors might even be less happy if tiny houses are squeezed in smaller lots.) Try to shame the public into addressing homelessness? (Not a good long term strategy with voters and whatever shame might not be as compelling as the idea that their property values could fall.)

Ongoing zoning controversies with mosques in New Jersey

Two recent zoning cases involving proposed mosques in New Jersey have garnered attention. A quick overview of each.

First, a newly filed federal lawsuit in Bayonne, New Jersey:

The mosque is proposed for an old warehouse at the end of a dead-end street on the city’s east side. The structure, built as a factory, previously housed a chapter of the Hired Guns Motorcycle Club, “made up of sworn law enforcement officers,” according to its website

To build the mosque into the existing space, Bayonne Muslims — the nonprofit organization that owns the space — went to the city in August 2015 to request zoning exemptions. It asked for requirements that a buffer between the existing building and adjacent properties be waived, and that it be able to provide less parking than required.
Ultimately, after three tumultuous public hearings, the proposal failed to gain approval at a March 6 meeting. The vote was 4-3 in favor of the project, but a supermajority — greater than the four votes in favor — was required under state law…
During the public hearings, some opponents expressed concern over the traffic and noise a mosque might bring to their dead-end street. Others cited verses from the Koran they asserted supported violence against non-Muslims.

A New Jersey town will pay an Islamic group $3.25 million to settle a lawsuit over its denial of a permit to build a mosque, the Department of Justice announced Tuesday…

The Islamic Society of Basking Ridge sued Bernards Township, an upscale town in central New Jersey, last year, claiming it changed its zoning ordinances in order to deny the group’s plans. The Justice Department also sued the town last year, alleging it treated the group differently than other religious groups…

Central among those was parking: Township planners had concluded that because Friday afternoon was considered peak worship time, congregants would most likely be arriving straight from work and would each need a parking space.

But a federal judge disagreed, and wrote in a ruling Dec. 31 that the town hadn’t conducted similar assessments of worship habits when churches or synagogues had made applications.

The Justice Department lawsuit also alleged the town changed its zoning laws to require houses of worship in residential districts to be at least 6 acres — larger than the lot the Islamic Society had purchased in 2011.

There are multiple issues at play in these cases:
1. Do municipalities apply the same standards to all religious groups? If not, why do particular groups receive more attention? (The two cases above involve Muslim groups. Do orthodox Jewish groups also receive a lot of attention?)
2. Is it legitimate to deny religious land uses for issues like traffic and parking (common complaints in suburban settings regarding many proposed land use changes)? In other words, are these typical NIMBY complaints or is there something unique about religious buildings?
3. Why are a number of these cases popping up in New Jersey? The state has a long history with exclusionary zoning issues – see the Mt. Laurel doctrine which developed out of a lawsuit. Additionally, it is home to a number of white suburbanites living in suburbs that they would like to preserve or protect.
4. Is the only path to resolution a federal lawsuit? Once such cases reach the level of a federal lawsuit, I would argue the communities have already lost. This is not just because RLUIPA cases tend to be settled in favor of the religious groups. I also imagine such lawsuits can bring negative attention to a community; do they really want to be known as the suburb that refused a certain group to worship there?
(These are not issues isolated to New Jersey. Perhaps there are similar conditions in the Chicago area suburbs. See earlier posts about mosque controversies in the Chicago region including here, here, and here.)