Restricting Times of Church Worship

Visitor Question: A church in our town has been approved to buy an old college campus church. During the C.U.P. process they wanted a condition, "The church cannot hold services before 3 pm on school (college) days due to parking issues."

Can they do this? What if the church was to be used for college kids during the day, like Fellowship of Christian Athletes, or just a campus service? Can churches be told when they can't have services?

Editors Reply: First we should explain that C.U.P. in this question means Conditional Use Permit. The conditional use permit is a zoning technique that allows a government to approve a particular land use but impose "conditions" on that approval. In other words, yes, you can do this, but only if you abide by these rules that we are going to spell out.

The conditional use permit typically is approved by the same process required for a rezoning; typically in the U.S. this means that there is a hearing before an advisory planning board often called the planning and zoning commission. Then that board's recommendation is forwarded to the city council, or whatever the governing body may be called.

Typically public hearings are required both at the planning commission and at the city council levels of consideration.

Of course some states may allow variations of that process. And not every jurisdiction that has a zoning ordinance has any kind of process for conditional use permits. In those instances, a use is either permitted, or it isn't.

Sometimes the conditional use permit may be called a special use permit or something else. (We think there is a difference between those two things, but people seem less and less concerned about those differences.)

All of this really is important in answering the visitor's question.

We are going to make some assumptions in answering this question. The visitor didn't leave any contact information, but it's a useful question.

We are going to assume that "they" in the first paragraph means the governing city, town, village, or county. So the government imposed a condition, making it up on their own. We assume the church did not request the condition.

So does the government have the right to impose such a condition? Our answer is absolutely yes, it does. Some people seem to think that churches can do anything they want, and that is not what is implied, even by courts that grant churches plenty of leeway in zoning matters.

That is definitely not what is meant by the Religious Land Use and Institutionalized Persons Act (RLUIPA), which was intended to prevent craziness such as a zoning ordinance that would not permit any churches, or any more churches, or a zoning ordinance that would favor one type of religion over another.

Restrictions on time and manner of carrying out a particular land use are classic formulations of when a conditional use permit process is necessary.

So yes, the church may worship, but not when an already aggravated parking situation exists in the vicinity. Note that the conditional use permit did not say how people were supposed to worship, who or what they could worship, or anything of the sort.

Instead the conditional use permit process worked exactly as intended: to allow something that otherwise would not be permitted at all.

It sounds as though, in the judgment of the government, they felt that worship services before 3 p.m. should be denied altogether. So even though it may seem harsh or adverse to our visitor who asked the question, actually the government was being lenient in allowing something that they would not otherwise allow at all if the zoning ordinance had a more discretionary tone.

By the way "the judgment of the government" has what the judicial system calls a "presumption of validity" within most courts. The persons elected by the people are presumed to have the best interests of the community at heart. We all know that individual elected officials are not always right, but in the U.S. we still believe that a local government gets it right when they act collectively.

Now of course a local government can't abuse this privilege. For example, if they restricted worship to 11:00 a.m.-11:30 a.m. on Sundays, that might be seen as totally unconstitutional because it is unreasonable. If you tell a synagogue or Seventh Day Adventists that they can't worship on Saturday, a judge will strike you down in a heartbeat. But we're answering as if the government here is sane and sensible.

At some time in the future, if and when the parking situation is dramatically different because, for example, the campus ceases to be, students and faculty all but cease to drive, or enrollment decreases dramatically, the church could and should go back to the government and request a modification of the condition.

In most places a change to the conditional use permit would require the same process as the original granting of the permit though.

The visitor who posed the question also asked about campus-only services. Well, if that was contemplated, the church should have mentioned that at the time. They could go back and request a modification if they want to have services where only people who are already on campus are allowed to attend. That gets pretty sticky pretty fast.

Yes, generally speaking governments can restrict the times of day for worship if they have a conditional use permit process.

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