God and Government at the Millennium	.
Judy Daniel	Author Info

Abstract

Introduction

In the late 20th century, churches feel their missions to serve the dispossessed or even their own congregations are threatened by selfish neighborhood residents. Neighborhoods feel their communities are overwhelmed by churches now operating day and night, seven days a week. In addition to Boy Scouts and Girl Scouts there are aerobics sessions, art lessons, counseling, day care and schools. Serving the larger community there are clothing banks, food pantries, meetings for varied 12 step programs, soup kitchens, job counseling, and even drug treatment centers. This is in addition to the traditional choir and church board meetings. Surrounding streets are clogged, sometimes driveways blocked, noise from youth dances goes on past midnight. Even more difficult are cultural conflicts in worship styles. Amplified music or speakers that echo into the neighborhood, bright lighting in parking areas, frequent outdoor festivals, multiple congregations sharing a worship facility are some of the issues that cause consternation. Both sides ask the government to resolve the conflicts by greater or lesser land use restrictions, but the mantle of Solomon does not rest easily on local government, and communities around the country are wrestling with the consequences.

These conflicts, due to dramatically changing roles and functions of American religious institutions over the past 10-15 years, reflect the demographic changes in American culture and the retrenchment of government from social welfare. As spending for social programs has decreased, religious groups are "taking up the slack" in assisting the poor and troubled, providing increased programs for the community at large, as well as their own congregations. Thus increasingly active churches create pressure on their neighborhoods in terms of parking and activity. In addition some "successful" churches are now tending to become increasingly larger - reflecting national retail trends. "Big box" churches - particularly among conservative Christian denominations, provide a plethora of outreach services for their own congregations but can create traffic safety and noise consequences in their neighborhoods. Finally, immigration has created a far more diverse community of faith in America, whose varied cultural traditions often conflict with accepted community ideas about how and when "churches" function in neighborhoods. The issues affect long existing congregations and new ones, urban and suburban groups. There are no easy answers and the problem has many faces. A list of recent press coverage on this topic is included at the end of this article.

This evaluation is the outgrowth of a five year study and evaluation process of zoning requirements affecting religious institutions in Montgomery County, Maryland. We learned much in this process we believe would be helpful for other communities. Parking, activity, and "big box" churches proposed in inappropriate areas are a national problem which we share, but we also face the fascinating impact of an increasing diversity of religious traditions. Montgomery has a large population of Asian (Asian Christian, Hindu, and Buddhist), Hispanic (Protestant and Catholic), Middle Eastern (Islamic), and Middle European (Catholic, Orthodox, and Jewish) immigrants who are dramatically reshaping our religious landscape - spiritually, architecturally, and culturally. This diversity made the proposed zoning changes even more controversial; as changes designed to cure parking, access, and excessive weekday/evening activity problems are interpreted as attempts to curtail the newer religious groups who are just starting to build their religious structures. It has been an interesting process, with some successes and some failures.

History And Background

Given this history of liberal social consciousness and participation in government, from the mid-1970's to the early 1990's, the Montgomery County Council liberalized the zoning regulations regarding religious institutions and their accessory uses. In 1976, a text amendment authorized an exemption from the special exception requirements for any private educational institution located in a church or government owned or leased facility. The stated intent of this amendment was to aid in the reuse of underutilized public schools. A perhaps unintended consequence was the ability of secular schools to lease space from religious institutions and to be exempt from the private school special exception requirements. As late as 1990 Montgomery County Government officials were studying ways to ease the regulatory burden on religious institutions, and adopted a text amendment which authorized churches as a permitted use in certain commercial and industrial zones.

By 1992 the situation had changed. Councilmembers began to notice a rising level of conflict surrounding non-residential institutional land uses, particularly religious uses in one-family residential zones. This was reflected in numerous phone calls and letters of concern. In response to Council concerns, the Planning Board proposed to add a work program item to study these issues and to "analyze the overall problems related to the compatibility of non-residential religious institutional uses in the single family and agricultural zones". In October 1993, the Council added that study to the Planning Board work program. That review process was to result in uniform standards for these institutional uses for traffic, parking, bulk, and other possible impacts on surrounding neighborhoods. The County Council, in approving the work program, requested cooperation with the Department of Permitting Service (DPS) in devising appropriate land use controls for these uses. The staff worked closely with that agency, as well as Council legal staff, the County Attorney's office, and Board of Appeals staff for the duration of this study process.

Phase I of the study was completed by in May 1994. At that time the Board decided that a site plan review process would be the appropriate review process for religiously affiliated private educational institutions currently permitted by right (when religiously established, operating on property owned by a religious organization, and when they include religious instruction as part of the curriculum). The staff prepared a text amendment following these guidelines and the requested text amendment was presented to the Planning Board in June 1995. After consideration, the Planning Board determined that the entire religious institutions issue should be evaluated comprehensively as Phase II, and decided to delay sending any text amendment to Council for introduction until completion of the entire study.

The religious institutions study is a continuation of the Planning Board's review of all non-residential uses allowed in single family zones, which was initiated in 1986 and evaluated other uses such as medical/dental clinics, professional offices, and home occupations. Recommendations were made and zoning changes adopted for those uses. The religious institutions study reviewed a wide range of issues that had been the source of concerns, evaluated alternative possible actions to alleviate those concerns, and concluded with recommendations for changes in zoning ordinance standards designed to alleviate some of the compatibility problems of non-residential institutional uses located in residential areas. These recommendations were compared with other area jurisdictions to determine legal issues and the comparative burden imposed by similar review processes. It was proposed that these changes affect only new facilities and major modifications to existing facilities. Existing religious institutions would be grandfathered as legal, until they significantly modify their facilities. Only the additions or modifications to older existing religious institutions would be required to meet current requirements, not to bring their entire facility into compliance with the new requirements.

The evaluation included a study of the ordinances of nearby Prince George's and Baltimore County in Maryland, and Fairfax County in Virginia, and a Washington, DC area Council of Governments survey of regulations affecting religious institutional uses in the metropolitan area. Analysis of these studies indicates that Montgomery County and the City of Rockville (the county seat of Montgomery) are more permissive than all other area jurisdictions. Most zoning ordinances, in contrast to Montgomery County's, provide separate standards for non-public institutional uses that are permitted in residential zones. Generally these separate standards increase the compatibility of these larger institutional uses by requiring greater minimum lot area, increased setbacks, and limitation on building bulk.

Evaluation And Study Process

As an outgrowth of that effort, in March 1995, a forum of interested citizen association representatives and religious leaders was convened to discuss these issues. A panel discussion and information meeting on zoning and religious institutions, sponsored by the Montgomery Community Ministries was held, attended by over 80 people including citizen group representatives, members of the County Council and religious representatives. The meeting was useful in highlighting many of the major issues of concern. At the end of that meeting it was determined that the Planning Board should continue to study the issues discussed at the forum with further public discussion through the public hearing process of the Planning Board and County Council.

In addition, the Planning Board staff initiated a survey of religious institutional uses, which was broadened by the Planning Board to include both places of worship and affiliated institutional uses - with and without places of worship. The intent of the survey was to assist in determining the potential effect of any changes in the zoning regulations. That survey provided valuable information which enabled the staff to substantiate a number of proposals for zoning revisions.

The original intent of the Phase II study was to provide the County Council with recommended text amendments by April 1995. However, during the study process the Planning Board heard testimony from the Montgomery County Community Ministries and received comments from other interested parties representing neighborhood groups and religious institutions. These comments raised additional issues that had not yet been deeply studied, and at an issues report hearing in June 1995, the staff recommended that additional time be allowed to study those issues. The Planning Board agreed that these issues needed to be thoroughly reviewed prior to making final recommendation on the issues and at that meeting requested further community input under the auspices of Community Ministries of Montgomery County. The Planning Board asked Community Ministries form a dialogue/study group with neighborhood group representatives to discuss the major issues of concern and develop a consensus approach, wherever possible. That additional work and analysis was deemed necessary to ensure that any changes that would be recommended address only particular problems and provide solutions that are fair to religious organizations in terms of cost and reflect the beneficial service these organizations provide to the public. The Planning Board then informed the Council of their reasons for this delay. That group, formed by Community Ministries, worked together for almost a year to resolve issues of concern. Their consensus ideas were the core of the recommendations for action.

Current Regulations in Montgomery County Zoning Ordinance

Religious institutional uses must meet the parking requirements, except that there is a reduced parking requirement for places of worship which prohibit the use of motor vehicles for attending services; or if located within an existing building in a commercial or industrial zone which meets the requirements of that zone no additional parking spaces are required. However, no overview of parking facilities is currently required of any religious use constructed before May 1962. A site plan is required only in those zones that require a site plan. In addition, such uses must be shown on a development plan or project plan if these are required by the zone.

Zoning Approaches in Other Jurisdictions

Legal Considerations

1. Must have a secular purpose that neither advances nor inhibits religion.
2. Must have a direct and immediate effect that neither advances nor inhibits religion.
3. Must avoid excessive entanglement with religion.

The staff was also mindful of a 1995 Zoning and Planning Law Report on RFRA (November 1995) which concluded that the law was not really having that much effect; and that there was uncertainty about whether RFRA will remain law as its constitutionality has been the subject of conflicting federal district court decisions and intense scholarly debate. This prediction ultimately proved substantially true, and the underpinnings of RFRA were undercut by the 1997 Supreme Court ruling on City of Boerne v. Flores. In that case the Supreme Court, in 6-3 decision invalidated RFRA, saying it was in excess of the scope of Congress' enforcement power. The case arose from zoning denial of building permit to enlarge a Catholic church in a historic district of Boerne, Texas. The Court explained that while Congress possesses power to enact legislation that enforces the constitutional right to free exercise of religion, such authority must be strictly preventive or remedial. That is -- Congress cannot enforce a constitutional right by changing what the right is. Thus the Court found RFRA to be an impermissibly intrusive interference by Congress into an area of traditional state prerogatives and general authority to regulate for the health and welfare of its citizens. This decision restores the pre-RFRA Smith test under which neutral, generally applicable laws may be applied to religious practices even in the absence of a compelling governmental interest.

The first amendment bars government from making law to prohibit or thwart the free exercise of religion. While it expressly forbids outlawing any type of religious belief, it is less clear dealing with government regulation of conduct related to religious belief. The courts do not have a clear test as to when such law is a free exercise violation, and problems arise when the government, with non-religious objectives, creates a law regulating a type of conduct that affects a person's religious belief. Thus any law that even by default, regulates religious conduct; may be challenged, even when it is not drafted with such intent. Since Smith, courts have moved away from strict judicial scrutiny of zoning laws that are neutral and of general applicability. Laws that affect religious practices only incidentally are not subject to a free exercise claim.

Therefore, zoning regulations that are general laws applying to all land-use should not be construed as directly regulating religious based conduct. The "compelling interest" test holds that a government may burden the free exercise of religion when the action is (1) in furtherance of a compelling government interest; and (2) is the least restrictive means available of furthering that interest. The "neutral law" test was established in 1990. In that case, the majority decision of the Court held that the State need not justify it action when a compelling interest when the law was neutral and not motivated to affect any religious beliefs. Legal opinion is currently in flux due to these changes. To date however, zoning laws which inadvertently affect the practice of religion are, for the most part, held to be constitutional. State courts have found similar support for zoning restrictions. In a 1990 Massachusetts case, a church claimed that its proposal to remodel church space into offices and counseling rooms was exempted as a religious activity. The Court held that the plan resembled a mental health clinic more than a religious activity, and free exercise was not restricted. The court focused on the use rather than the sponsoring organization, stating that the "activity concerned is not an enterprise of the landlord church and is not designed primarily for the parishioners of that church.

The Court recognized several activities beyond prayer and worship that were generally considered valid extensions including: daycare, scouting, sporting activities, religious education, art and music programs, and recreational programs. To qualify as such, the members and staff of the institution are generally involved in the activity. Accessory uses not generally used by members and staff have been held as invalid. Cases reviewed under the "compelling interest" test also focused on the uses of church property, and questioned whether these uses were truly religious or were to be controlled by zoning. These cases give insight into the specific types of activities that the government may regulate on church property. A 1988 Connecticut decision held that a special exception should be granted to a convent, reasoning that the building's dominant use determines its character. It held that the convent and chapel were the dominant use, although it included accessory uses (bookstore, audiovisual center). It considered the statement of purpose, and size of the spaces devoted to the various uses. In 1988 an Ohio church was denied a permit for a classroom, gym, and auditorium before building a chapel. Without a supporting primary religious use, they were not allowed.

After reviewing the case law, it is clear that government has the right to create zoning law which infringe on free exercise to a certain extent. The public policy theory is that government enacts zoning to protect the health, safety, and welfare of its public, and certain restrictions are allowed. For example, requiring a permit for places of worship in a residential zone where criteria for issuing the permit is related to the amount of increased traffic and noise that would be inflicted upon the surrounding community would be considered a valid government interference on free exercise.

Review of Issues

The recommendations strongly reflected input from the Community Ministries Dialogue group, as that group, comprised of neighborhood group representatives as well as representatives of religious groups, spent nine months working out compromise positions on the issues they found to be of greatest concern. The staff attended their meetings to answer questions and provide background but the study, work, and evaluation was completed by the members of the group. Their input was consistently thoughtful, fair, and reasonable. They came to have a basic agreement on most of the areas of concern, which were incorporated into the recommendations to the greatest extent possible. In putting together this group, the Community Ministries staff made every effort to be as inclusive as possible of the range of religious organizations and interested citizen and neighborhood organizations. While representation was not as broad based as was initially hoped, due to lack of participation from many Islamic, Asian, and fundamentalist Christian religious organizations; multiple efforts were made to include them. However, the group made every effort to consider the interests of these religious groups in their absence, and to propose solutions that would be fair to all concerned.

The issues evaluated by the group were derived from letters received by members of the County Council from individual citizens, Council discussions, actions by the Planning Board at the time of subdivision reviews or special exception review of similar land uses, issues raised by representatives of religious organizations at previous Board meetings and at forums on this issue, issues raised by Citizen Advisory Committees for particular master plans and written comments from various citizen associations commenting on existing zoning regulations. These issues included specific problems concerning land uses, proposed expansions to existing uses, and newly constructed land uses.

The initial list was further discussed and refined by the Community Ministries Study group over the course of their evaluation of the religious institutional use issues. Additional recent letters to the Planning Board from neighborhood representatives and religious organizations expressing concerns were also taken into consideration. The Community Ministries group, after several months of work, suggested some additional issues of specific concern to the dialogue group and divided the list into subcategories related to appropriate action to address the concern, including:

1. Issues of process, outside of regulatory functions:
2. Issues of enforcement of existing regulations:
3. Issues To Address Through Changes to the Zoning Ordinance or Master Plans

Analysis of Issues and Recommendations for Changes

Dealing with issues of process, outside of regulatory functions.

1. Establish a method to deal with issues best handled though negotiation between a religious institution and neighborhood. Perhaps establish a team to provide mediation and education services in a religious institutions/neighborhood controversy. The Community Ministries Study group believed that one good outgrowth of this process would be the creation of a "go-between" group, perhaps under the auspices of Community Ministries, to work with the parties involved in conflicts between religious institutions and their immediate neighbors. They came to understand that some of the problems generating conflict are either beyond regulatory control, or would be very difficult to regulate; but perhaps could reach a mutually acceptable agreement through diplomacy and education. The group believed that if county agencies were willing to allocate staff on an as-needed basis to be a part of this resource, it could be the best means to resolve certain issues.
2. Publish a brochure for religious institutions to explain the process for building or expansion. The Study group believed that such an educational publication would be very helpful for religious institutions considering building or adding to their religious facilities.
3. Present the findings and conclusions of the Study group to a forum of religious and civic leaders to share what was studied, learned and agreed to during the process.

Dealing with issues of enforcement or regulations other than the zoning ordinance.

1. Noise - Noise is regulated by Noise Control Ordinance enforced by the Office of Environmental Policy and Compliance. A number of citizens complained about religious uses creating noise at inappropriate times - from both religious services and social gatherings. Some of the problems stem from insufficient knowledge of the provisions of the noise ordinance. Citations can be issued as needed, and noise heard 50 feet over the property line is the threshold for action. These provisions are enforced from 9PM to 7AM weekdays and 9PM to 9AM on weekends. A seemingly little known enforcement provision of the noise ordinance allows three corroborating statements of excess noise to be acceptable as a violation subject to enforcement procedures. The proposed brochure could raise the sensitivity of religious institutions regarding their responsibility and legal obligation to protect the quiet enjoyment of their neighbors.
2. Determining whether use is a religious institution or an accessory use to a residential use. - This is determined through use of Building/Fire Code Standards for a Place of Assembly and is based on factors such as frequency of meetings and number of people attending on average which must exceed 49. Neighborhood representatives expressed concern that this standard is too permissive and that DPS is not strict enough in making this determination. It was concluded that it would be very difficult to change the standard but changes recommended to development standards for places of worship to ensure that they are sited on streets that are appropriately sized to accommodate the traffic and activity they generate.
3. Runoff Problems from Institutional Uses in Neighborhoods - Any new facility must meet county stormwater requirements. A number of religious institutions expressed concern with the cost of stormwater management controls; while a number of neighborhood representatives expressed concern that these requirements have not been properly enforced, thus causing runoff problems. No additional action is recommended on this issue, other than to recommend better enforcement procedures. While these facilities may be somewhat expensive, they are very necessary to protect environmental resources.
4. Use of religious institutional property for commercial purposes including determination of use of funds raised at religious institutional functions - Neighborhood representatives believe that DPS is not strict enough in its enforcement, allowing revenue generating activities with little religious relationship. These activities create traffic, noise, activity and parking problems. However, this issue was determined to be primarily an enforcement problem, not lending itself to being solved by additional zoning regulations.
5. Adverse effects of extending water/sewer to institutions beyond designated envelope in low density residential and agricultural zones. - Until 1993 conflict between master plans, the Water and Sewer Plan, and the need to accommodate religious institutions were resolved by the County Council on a case by case basis. At that time the Council instituted a temporary moratorium on water and sewer extension requests. When that moratorium expired in December 1995 Council requested immediate policy guidance for the backlog of the extension requests. The following policy guidelines were recommended and adopted by the Council for requests outside the sewer envelope:

   Private institutional uses requesting service outside of the recommended service envelope and therefore inconsistent with the relevant master plan to be reviewed and considered for approval recommendation on a case by case basis if they meet one of the following:

   1. Properties that immediately abut existing water and sewer lines and could be served by on-site extensions.

   2. Properties requiring main line extensions allowed if the extension will not extend past an intervening property, and if extension costs are paid by the facility requesting service.

   3. In support of any existing private institution, on a case by case basis, extensions may be considered that do not threaten to open undeveloped land to development contrary to the adopted master plan. In all cases, extensions to facilities meeting this criteria will be designated as "limited access" in the Comprehensive Water and Supply and Sewerage Plan.

6. Adverse effect on neighborhoods from over-concentration of institutional uses in one area. A number of neighborhood representatives commented that they believe that the placement of an increasing number of any type of use - including religious institutions - can change the character of a neighborhood, and possibly lead to a basis for rezoning action by developers. Although this type of criteria has been used in some states, it was deemed inadvisable to consider any direct action to address this concern. In the interest of protecting the freedom of worship it was determined to be best to avoid an evaluation by government of an "appropriate" concentration level of religious uses.

Issues To Address Through Changes to the Zoning Ordinance or Master Plans

1. Amendments would address only the impacts of institutional uses and their activities in the residential and agricultural zones.

2. Amendments would be recommended only for the identified issues of greatest concern, with the least regulatory change required to resolve the concern.

3. Amendments would only address concerns raised in relation to permitted non-residential institutional uses in the residential and agricultural zones - thus they primarily will affect places of worship, libraries, and museums, which are the only types of private, non-residential institutional uses permitted in these zones. Other non-residential institutional uses in these zones are allowed by special exception and are already subject to a level of public review.

There are multiple ways to address these issues, and substantial legal support for a far greater level of control than currently required in Montgomery County. While the constitutional underpinning of protection for religious uses is quite clear in its protection of how one chooses to worship, there is considerable legal support for controls over where places of worship may be permitted, and the type of requirements that may be imposed to ensure safety and a level of compatibility. Regulation of the potential incompatibility of religious activities, either as major institutional uses or their associated accessory uses are allowed. The conclusion of legal assessments is that such uses can be regulated if the regulation responds to a compelling interest on the part of a local entity in promoting public health, safety, and welfare; and many other ordinances have been upheld based on this criteria.

Staff research found that within the immediate region and within the State of Maryland, many if not most other jurisdictions exercise a considerably higher level of control than Montgomery County. Nationally, other jurisdictions go even further, with legal support for the constitutionality of their requirements. Florida goes as far as to enable jurisdictions to not allow places of worship in their residential zones at all, as long as they are allowed in other zones. While these examples provided the basis for allowing greatly increased control over places of worship and their affiliated uses, no need was seen for dramatically increased control over religious institutions.

Finally, it was determined that any zoning ordinance change should protect the status of existing religious institutions. Such uses would remain permitted and would become subject to review only for significant additions, modifications or alterations were made to the existing structures or supporting facilities. Therefore, given the direction of the Community Ministries Study group discussions and staff research, the following approaches to the issues determined to be appropriate for zoning ordinance changes were recommended:

1. Adequacy of Parking Standards. There was general agreement that existing off-street parking requirements for religious institutional uses are inadequate in terms of number of spaces required and parking facility requirements. Insufficient parking has caused the greatest amount of controversy of any issue studied. Where there is insufficient on-site parking the overflow often goes onto narrow residential streets and causes numerous problems related to destruction of grass shoulders on open section roads, blocked driveways, and insufficient passage way for area residents. When parking facilities are insufficiently screened from adjacent residential uses they are seen as an unsightly entranceway to neighborhoods, and create noise and lighting problems.

   Another issue that has caused concern is the purchase and demolition of neighborhood homes to create additional parking area. Religious uses are criticized for creating crowded on-street parking conditions, then further criticized for demolishing homes to create parking areas. Often the problem is the sheer frequency of use at these facilities, since many now offer a range of community and congregational activities many days and nights of the week. In other instances, the problem is lack of enforcement of existing parking facility standards in the ordinance. Current parking requirements for religious institutional uses in the zoning ordinance include:

   1. A parking space requirement of one space for each four persons for whom seating is provided in the main auditorium, with provision made for joint use of nearby parking through a reduction of 30% from the base requirement. There is provision those whose religious beliefs do not allow the use of motor vehicles traveling to and from services.

   2. A parking facilities plan is required for all off-street parking if 25 or more parking spaces are required, but no review when fewer than 25 spaces are required.

   3. There is no evaluation of the need for additional parking for accessory uses to a primary religious use on a single site, when in fact accessory uses may require more parking than the primary use.

   4. There is no evaluation of the impact of increasingly frequent use of on-street parking, which generates conflict with neighboring residential uses - particularly on narrow residential streets not designed for such frequent use.

   Allowing expansion of religious institutions without onerous regulation is vital, but responsible expansion must include some level of review to ensure that the impact on adjoining neighborhoods is not onerous. The following were recommended as possible changes to alleviate the noted problems:

   1. The standard of one parking space for every four seats in the assembly hall set in 1961 was found insufficient, and a higher parking space calculation of one space for every three seats in the main auditorium was recommended. Staff research and testimony of actual situations at area places of worship indicated that fewer people arrive per car to worship services than in the past, as the size of families shrink or they attend different services.

   2. The current requirements allow only limited shared parking for religious uses - even though their highest use usually occurs at off-peak times. Therefore it was recommended that such increased flexibility be extended to religious institutions. First, a calculation would be made for the required number of on-site parking spaces based on the number of seats in the largest assembly room or total size of the planned facility. The religious institutions could use this calculation; OR the option would be available to present a parking plan for approval that would require fewer on-site parking spaces if alternate off-site parking was available within a convenient walking distance. Such a plan would indicate where the alternate off-site spaces would be located and the arrangements for their use. Such alternate locations could be off-street lots (through a shared parking arrangement) or on-street spaces (if the street were appropriate for such). Up to 70% of spaces could be provided in this way.

   3. Compliance with off-street parking requirements for additions or modifications resulting in additional seating capacity for religious institutions existing before 1962 (before parking was required).

   4. Evaluation of parking adequacy for permitted accessory uses to a primary religious institutional use.

   5. Requiring a certificate of compliance, if no bond is posted, to improve enforcement of existing requirements.

2. Adequacy of development standards including building size, buffering, fences, setbacks, traffic circulation, bulk, and minimum lot size to provide compatibility with residential development. The intent of zoning regulations is to provide for the location of uses in a manner compatible with adjacent development. While it is recognized that religiously affiliated institutional uses provide beneficial services to the community that outweigh some increased incompatibility that may result when these uses are located in single family and agriculturally zoned areas, most zoning ordinances provide separate standards for semi-public institutional types of uses when they are located in residential zones. The Montgomery County ordinance references specific standards and public review requirements for special exception uses for other types of institutional uses, but not for churches, which are the only permitted institutional use in the residential zones. Currently, places of worship and their attendant accessory uses must only meet the general development standards of the applicable zone.

   Many jurisdictions in the area have required religious institutional uses to be reviewed through a special use permit process for a number of years. Fairfax County (Virginia) is particularly restrictive in this regard, and a 1994 attempt to liberalize their code authorizing places of worship by right under certain circumstances, failed. Other jurisdictions require a special exception review process only under certain circumstances; such as Prince George's County (Maryland) which requires special exception only for sites of less than two acres.

   The Community Ministries study group determined that it was reasonable to require religious institutional uses in Montgomery County, even when permitted by right, to meet minimum site development standards - including minimum lot area, minimum lot width, minimum setbacks, building coverage and maximum building height which are appropriate for nonresidential institutional uses and different from the existing standards designed and scaled for single family residential development. These changed requirements would be for new uses, and for significant modifications, alterations, or additions. No change was proposed that would affect the permitted use status of existing facilities. Separate standards were recommended that required all new or converted structures to meet deeper setbacks than required of residential uses, meet a floor area ratio requirement (standard for non-residential uses) in addition to a lot coverage requirement, have a longer lot frontage requirement, meet a minimum green space requirement (common for non-residential uses), and take primary access from a primary residential or greater capacity street. Some of these additional requirements could be off-set by changes in the parking facility requirements which could allow additional FAR or lot coverage if some parking needs are met off-site.

   In certain circumstances, such as extremely large facilities or those located on small residential streets, would require special exception approval. For example, a number of zoning ordinances studied have a provision that requires any non-residential indoor institutional use with a main assembly area seating 1,000 or more to go through a site plan or special exception approval process. Such a process would allow additional review for such uses where the potential is greatest for conflict with adjacent residential areas. The proposed standards would make the Montgomery County ordinance somewhat more restrictive, but only partially as restrictive as other ordinances in the metro area such as Prince George's County, Baltimore, and Fairfax County.

3. Adequacy of standards for review of conversion of dwellings to places of worship. - The practice of converting a residence to a place of worship is happening more frequently in Montgomery County neighborhoods. While not widespread, the practice seems to generate considerable controversy. The controversy usually begins when there are frequent meetings being held in a home, but not over the threshold for a place of worship as the primary use of the dwelling. Since that determination is based on a place of assembly being more than 50 people meeting regularly, considerable activity can be generated before the various code requirements applicable for places of assembly become applicable.

   The initial problem is exacerbated when the converted home is located on a residential street not designed or built to accommodate the traffic and parking generated by an institutional use. In addition, the zoning ordinance does not require any parking facility review unless the use requires more than 25 parking spaces (a 100 seat facility). The conversion issue was the specific target of 1993 changes to the Prince George's County Zoning Ordinance, which requires special exception for religious institutions on lots smaller than two acres. As land and buildings become increasingly scarce, such conversions will become an increasingly attractive option. It was recommended that in order to clarify the requirements for these conversions the zoning ordinance should define when a residential dwelling may constitute an institutional use for religious purposes, and be subject to appropriate requirements.

4. Adequacy of standards for review of religiously affiliated schools. - The regulations governing secular vs. religious schools and day care facilities are substantially different. Although they have no less impact on a neighborhood than secular schools, they face no specific review requirements. Consequently there is great concern that neighborhood safety and compatibility concerns are given insufficient consideration when these religiously affiliated uses are approved. In years past, when the exemption for such schools was instituted, there was little question as to their role as an intrinsic part of a neighborhood. As stated in the defining court case for these schools, "Creative Country Day School vs. Montgomery County Board of Appeals" in 1966:

   "A church or religious organization operating a parochial school in the community which it serves, is by its nature sensitive and responsive to the needs of the community and any hazards which the operation of the parochial school will have generally and also specially on the neighboring property owners. The attending children are generally residents in the neighborhood. It is usually financially dependent upon the good will of its adherents in the community"

   That situation clearly has changed. Many if not most schools with religious affiliation, as well as secular private schools, draw students from a wide geographic area and have often have little direct connection to their surrounding neighborhood. With these ties to the neighborhood loosened or non-existent, there is a greater need to establish some level of control over these uses. Currently, schools operating on property owned or controlled by a religious institution, whether or not they have a religious curriculum, are considered an allowed accessory use on that property. There is no consideration of additional parking needs, traffic congestion, activity generated, or other concerns that may dramatically affect the quality of life in a neighborhood.

   The recommended change to address this issue required site plan review for these uses. This text amendment defined religiously affiliated educational institutions to include all such institutions operating on property owned by a religious organization that offer instruction in a particular faith as part of the curriculum; lists child and elderly day care and religiously affiliated schools as permitted uses subject to site plan review (in the single family residential and agricultural zones) when located on religiously owned or leased property; provides review standards for child and elderly day care facilities, and includes a grandfather clause for existing private schools.

   There would be a two-tiered approach to require distinction to be made at the time of building permit between secular private educational institutions with no religious affiliation and religiously affiliated private educational institutions. Those defined as secular institutions without a religious affiliation would continue to be special exception uses - even if located on property owned by a religious institution. Those within the definition of a religiously affiliated use would fall under site plan review. The standards provided for site plan review for the secular PEI and day care were identical to the special exception standards for PEI. Finally, to ensure adequate and safe access for any private school, private school standards would be changed to require that all private educational institutions must be located on a primary residential street or higher classification, and that otherwise permitted religious schools must receive site plan approval when they are very large.

5. Creating financial incentives for religious institutions to locate near neighborhood activity centers. There is general agreement that religious institutions are best located near activity centers, but too often land costs preclude that option. However, in these activity areas their presence is welcomed, and they provided activity at times when commercial businesses are closed. To address this concern, it was recommended that master plans begin to give some guidance to where religious institutions are appropriate. For example, edges of business districts and town centers are appropriate areas. Often there is land along major arterials at the edge of business districts which is developed in older single family homes, and still zoned for residential use. Planners often recommend more intense zoning on this land, since it is often no longer appropriate for houses due to increased traffic and activity. However, intensifying the zoning increases the cost of the land. If some of these areas are left in residential zones, this would possibly provide less expensive land in locations very appropriate for religious institutions.

   Such locations are also very accessible to parking areas appropriate for shared arrangements which can be a cost saving for a religious institutions. In addition, it was proposed that religious institutions proposed at this type of location be allowed a higher lot coverage standard. For example, if 50-75% of parking spaces or more could be supplied at a nearby off-site location through a shared parking arrangement, the lot coverage or floor area ratio could be increased proportionally, as long as a minimum green space requirement is met. This type of provision could also be of assistance to existing older religious institutions's wishing to expand their facilities, if they are located near commercial areas.

6. Lack of definition in zoning ordinance for religious uses and their accessory activities. - The Montgomery County Zoning Ordinance includes no definition of institutional religious uses. The land use "Churches, memorial gardens, convents, monasteries and other places of worship" is a listed permitted use in the use tables for residential and agricultural zones, and "Place of religious worship" is a listed permitted use in certain commercial and industrial zones. Staff research revealed that most zoning ordinances provide some definition of private institutional uses particularly where they are permitted in residential zones. Providing a definition for religious institutional uses to clarify their intent and allow easier enforcement of appropriate regulations was recommended. The lack of such definition has led to administrative ambiguity. Consequently, determinations of what is an accessory use to the primary permitted use in single family zones have been inconsistent. Recommended changes included:
   1. A definition of a place of religious worship, possibly including a list of usual and customary accessory or incidental uses that may be permitted subject to meeting the basic requirements or standard for the primary use (ie a no impact accessory use), and those uses that may be permitted by right an if they meet certain criteria (ie, a limited impact accessory use).

   2. A description of when the conversion of a residential dwelling for religious purposes would be considered for regulation as a religious institution or place of religious assembly.

   3. Standardization of the names for these uses, which currently have different names in different zoning categories.

7. Lack of regulation for accessory activities and uses at places of worship leading to activity conflicts in residential neighborhoods through increase in frequency, hours, types of non-worship activities. - Religious institutional uses, particularly places of worship, are rapidly expanding their roles beyond that of places for worship and study. They are expanding into a wide range of community service functions, some only tenuously related to the primary religious worship uses. Such uses include day care programs for children and the elderly or infirm, adult educational or counseling programs, or community accessible recreational centers. Money is raised for these and other functions through traditional bake sales, rummage sales, bazaars, "all you can eat" dinners, fairs, carnivals, and picnics. But they are also expanding the regularity of non-religious revenue producing activities such as "bingo" nights, producing plays, giving concerts, renting out parish halls for social events, providing conference and retreat facilities, and other active uses. There are neighborhood impacts (traffic, noise , parking, lighting) from these types of accessory uses that are traditionally not associated with a primary religious use. It was recommended that these extended uses be subject to review standards on a permit basis, but the standards were designed to protect the community service function of the religious institution and not increase the costs for providing those services.

   Staff research showed that accessory uses found at places of worship that have caused the most controversy seem to relate more to how the uses are conducted rather than what they are. For example, recreational uses that are opened to use by the general public for a fee, parish halls or similar facilities that are frequently rented out to non-members for social events causing traffic and noise problems, or other region wide occasional events are the source of the most controversy.

   The Council of Governments survey of religious institutions in the metro area studied accessory uses that have caused problems in communities. Of those listed, Montgomery permitted the greatest number of these uses by right. Of the 14 governments surveyed, only Montgomery, Loudoun and Frederick County allow religiously affiliated schools by right; and only Montgomery, Falls Church, Frederick County, and Herndon allow accessory uses such as swimming pools by right. Allowable accessory uses to religious institutions are currently based on the principle that accessory uses are those "customarily incidental and subordinate to the principal use of a lot or the main building thereon, and located on the same lot as the principal use or building." Additional standards were recommended for two types of accessory uses - outdoor recreational accessory uses (swimming pools, tennis courts, etc.), and special permit regulations for temporary events.

Public Reaction and Changes to Recommendations

The final version of the proposed zoning changes, after the refinements and with little apparent opposition, were presented to the Board in September 1996, and the Board recommended the revised text amendments to the County Council. At this time, one congregation - a Baptist church planning to move from an older neighborhood in lower Montgomery County, to a bigger site in the suburbs - began to spearhead an opposition movement to the zoning changes. The problems facing this particular congregation related more to existing review standard for zoning, subdivision, and traffic than the proposed standards, but the congregation, led by a charismatic and emotional young preacher, who turned their opposition into a movement. Very soon, emotional scare tactics used by this group cascaded from minor opposition into massive resistance to any changes throughout the religious community. Three years of quiet, rational, thoughtful work by many dedicated people from government, neighborhood groups, and church representatives -- were vilified as anti-religious, immoral, and illegal. Rather than the expected opposition to particular elements of the recommended zoning changes, which could be deleted or modified, the entire process came under emotional attack.

Although there was still considerable support for the changes, it was overwhelmed by the intensity of the opposition which spread from pulpit to pulpit and into the print media. The primary force behind the opposition was generally the charismatic and evangelical congregations, who seemed to see it as a unifying force for their congregations as much as an evil change to be defeated. By the time of the public hearings at the County Council in the early spring of 1997, the Council members were inundated with letters - often form letters passed out as samples to members of church congregations. Two nights of hearings were scheduled, and the opposition was enormous. It actually did turn out to be a great ecumenical unifying force. Protestants, Catholics, Jewish, Buddhist, Orthodox were united against what had by now been portrayed as a threat to religious liberty.

The truly unfortunate thing about the opposition was that the actual impact of the proposed zoning changes was so grossly misrepresented and overstated. The supposed constraints on religious freedom would have done no more than is already required in most urban areas of the country. In addition, a number of the proposed changes were actually requested by the churches to give them more flexibility. But it was a deliciously ripe issue for rallying opposition and participation. In a county with an overabundance of extraordinarily active neighborhood organizations, it was a perfect item to wrap in the self-righteous folds of dramatic religious rhetoric. Flyers were widely distributed, those with legitimate concerns were vilified, statements at the Council took on the tone of revival sermons. Each speaker found frequent applause at particularly eloquent jabs at the proposed zoning changes or those who dared propose it. They sat down to thunderous amens and applause.

Given the spectacle, several members of the County Council, previously with minor opposition or even tentative support for the changes; radically changed their positions to ensure that the crowds knew that they were in full opposition. The politicians, like those in the audience, joined the chorus of diatribes vilifying any attempt at changes that would impact the churches. The members of the study group, even other Council members, were verbally assaulted.

After the debacle of the public hearing the Council took the issue under advisement for further study and it drifted in limbo through the spring and summer. Cooler heads began to discuss the issue. Several Council members who supported the changes drafted a less comprehensive version, which would only address the most pressing problems. Given the massive show of opposition, however, this version did not seem to have sufficient support to pass. Finally, the Council members most opposed to the changes proposed an approach that was part of the original recommendation from the study group. Instead of making any changes in the zoning, a "mediation" committee would be formed with no authority to compel changes; but allowed to function as a forum for conflicts between churches and their surrounding community to work out differences. As with most zoning changes, the proposals for changes to religious organizations were geared to the problems arising from a limited number of situations. It was the belief of those proposing the mediation group that many situations generating the proposal for change could be worked out by talking through the issues. In addition, a compilation of the number and type of issues worked on by this group over a test two year period would provide a better statistical record of how many and what type of complaints were actually being dealt with in the County.

This text amendment was passed by the Council in the fall 1997. It contained a clause which effectively killed the proposed zoning changes by deferring consideration of them for two years. The mediation committee has been set up and as of January 1998 several cases have been referred to them, but no actual mediations have yet occurred.

Conclusions Regarding Process and Procedures

Second, in defense of the process used, sometimes the best laid plans are waylaid by totally unanticipated events. If the one Baptist church that galvanized the opposition had not planned to move just as the three year study process was being completed; the debate over the text amendments would have possibly been far more rational and the majority of the proposed changes would probably been adopted. Modifications and changes were expected but wholesale opposition to the entire process did not surface until very late in the process and it was expanded primarily through the efforts of the one congregation. The irony of that situation is that this church is still facing the same problems with existing zoning, subdivision, and traffic regulations and may not be able to build as they wish after all.

Third, one charge leveled against the proposal to change zoning regulations was unfortunately substantive. Although wholly unintentional, the burdens of the proposed new regulations - wider setbacks, more parking, more landscaping, more buffering - would have fallen disproportionately upon congregations representing minority and immigrant populations. Montgomery County has become over the past decade one of the most ethnically diverse suburban counties in the country. The places of worship being built in recent years are more often Islamic mosques, Buddhist or Hindu temples, Korean Christian, Hispanic evangelical Protestant congregations, or Ukrainian Orthodox as they are Roman Catholic, Methodist, Jewish, or Presbyterian. The other type of congregations causing conflict are the very large, usually evangelical Christian churches often with primarily black membership. The conflict with the neighbors where these congregations wish to locate is because of their traffic, noise, or level of activity -- but to the heightened sensitivities of these ethnic or minority groups the opposition feels like prejudice against them due to race or cultural bias.

Because suburban neighborhood groups are very activist and willing to oppose uses they believe intrusive, they sought the changes to the zoning requirements based on their experience with the older existing churches in older neighborhoods -- primarily mainstream Protestant and Catholic. However, those groups are not building many new churches now so the burden of the new regulations would primarily impact the ethnic and minority groups moving to the suburbs. While race or cultural issues were not at all at issue in the discussions of the zoning changes - the consequences would have primarily affected these groups. So any community considering changes such as these should take into account unintended consequences and who would be most impacted by changes.

Finally, the best part of our process was the overwhelming goodwill and sincere effort of the study group organized by Community Ministries of Montgomery County. This organization put together an ecumenical, bi-partisan group representing many religious beliefs, neighborhood activists, and government officials. The group worked sincerely and efficiently over almost a year to hammer out compromise positions beneficial to both sides. The misrepresentations of the final work of this group was the real tragedy of the emotional excess that emerged at the end. That type of opposition was unfair and unnecessary; but as so often happens in zoning issues - issues became important at the end that were not the same issues that initiated the study. The lesson is that using such a group can be a valuable tool for working out divisive issues, but there is no guarantee that their work will be validated by all groups they are trying to represent. A new player entering the arena in the ninth inning can change the whole game.

Our experience was overwhelmingly positive for most of the three-year study period. There was reasoned debate resulting in numerous modifications and changes. More evolution like this was anticipated after introduction of the text amendment at the County Council. The type of opposition encountered -- spearheaded by one congregation using emotional scare tactics and misinformation about the content of the changes -- took the entire planning agency, county agencies, Planning Board, and County Council by surprise. We tried to continue down the path of reason, when reason had been lost to emotions. The resulting triage put the issue on hold for at least two years when it may or may not be reconsidered again, depending on the number and types of conflicts at that time.

References

Churches in Residential Neighborhoods:

Resistance Grows to Noble Causes - Nonprofits unwelcome in many residential areas Washington Post - July 1995

A Schism Over Church Expansions - Neighbors use zoning rules to block growth Washington Post - September 1993

Large Churches:

Growing Churches Can be Painful for Residents - Silver Spring Gazette - February 1997

Zoning and Big Box Religion - Zoning News - November 1996

Religious Diversity:

A Place for Those Who Pray - Along Montgomery's "Highway to Heaven"Diverse Acts of Faith Washington Post - August 1997

The Mosque Next Door - Religious Diversity in the Suburbs Harvard Magazine - September/October 1996