Zoning friction between towns and churches leads to legal challenges, legislation

By: - July 27, 2022 5:43 am

Before it was shut down by a cease-and-desist order from the town of Bedford, the New Hope Christian Fellowship church met out of a converted living room in a former residential home. (Courtesy)

One week into the pandemic lockdowns, a group of Bedford residents decided to build a new church. 

After purchasing a house on Route 101 in March 2020, the group, the New Hope Christian Fellowship, began holding services in the living room. Attendance was modest; just 10 to 20 people participated every week, attending Bible study groups, Sunday services, and pastoral counseling. Meetings were held virtually at first, with church leaders broadcasting from the living room, but the church later moved to in-person gatherings. It began planning an extension to the house that could hold 50 people at once. 

But in October 2021, 18 months into the endeavor, the town sent an order to cease and desist. The town said the church had failed to obtain an occupancy permit allowing religious gatherings. The church hired a lawyer and challenged the order in Hillsborough North Superior Court. 

Those proceedings are ongoing, after a Superior Court judge denied an attempt to get a preliminary injunction against the order in December. But this month, Gov. Chris Sununu signed a bill that could give the church – and others like it – a boost. House Bill 1021, signed by Sununu, overrides any zoning ordinance that is deemed to prohibit, regulate, or restrict land or structures used primarily for religious purposes.

The new law contains caveats: Towns may subject religious properties to a number of standard zoning requirements, such as regulating the height of structures, yard sizes, lot area, setbacks, open space, and building coverage requirements, as long as those requirements are applied equally to religious and nonreligious properties. But a town may not take actions that “substantially burden religious exercise,” the law states.

Supporters of the law, who include Republican lawmakers and religious leaders, say it will help counteract what they see as a tendency for some New Hampshire towns to shut out religious groups from churches and other worship buildings, by imposing difficult zoning regulations that they say target the groups. And they say the new law simply bolsters the state’s existing constitutional protections against religious discrimination by towns and other political subdivisions.

“The intent was … you can apply any typical setback requirements, parking requirements, those types of things, to everybody the same, but you can’t discriminate against the church,” said Rep. Kurt Wuelper, a Strafford Republican and the prime sponsor of the bill.

But the New Hampshire Municipal Association and town leaders have bristled at the new law, arguing it could allow churches to operate without the same restrictions as other nonresidential properties. 

“If someone decides, ‘Hey, I want to use this particular property for religious use,’ it seems to give them more rights to be exempted from regular zoning than any other particular use,” said Natch Greyes, government affairs counsel for the municipal association. 

The association is coordinating with municipal attorneys to decide how to interpret the new law, and will then issue guidelines telling towns how to follow it, Greyes said. They expect those guidelines will be available sometime next week, Greyes added. 

Bedford Town Manager Rick Sawyer declined to comment on the case in detail. But he argued the church was being treated the same as any nonresidential property would be. 

“A certificate of occupancy is required for all buildings in the town of Bedford,” he said. 

Bedford’s cease-and-desist order came after months of wrangling over the church’s tax bill. After moving into its new location in 2020, the church argued the property should be given tax-exempt status. In June 2020, the town countered that that property must be approved for use as a church before property taxes could be waived. The zoning board denied the tax-exemption request. 

The church requested a second exemption in 2021, which was also denied. That October, the town issued the cease-and-desist order. The church has since stopped its in-person gatherings. 

In its lawsuit, the church claims that the order violates Part 1, Article 5 of the New Hampshire Constitution – the state’s religious freedom clause – which states that every resident has “a natural and unalienable right to worship God.” The church has also argued the town is acting against the First Amendment of the U.S. Constitution, as well as the Religious Land Use and Institutionalized Persons Act, a federal law that bars governments from imposing land-use regulations that treat religious organizations differently than nonreligious organizations. 

Michael Tierney, the church’s attorney, notes the three-bedroom house occupied by the church has already been deemed safe for residential use – whether for birthday parties or Christmas gatherings. That determination should apply for the church’s uses as well, he says. 

“There are a number of different types of organizations that hold gatherings of 10 or 12 people regularly in three-bedroom homes,” Tierney said, naming a few: Cub Scout meetings, garden clubs, and political activities.

By applying an additional approval requirement for occupancy for a church, the town is discriminating based on the use, Tierney said.

“My clients have been denied the ability to use their property for religious worship services for pastoral counseling and for Bible study,” he said. “… And they have been denied that ability precisely because they want to use it for church purposes.” 

Sawyer sees it differently. “All projects, whether it’s a bank or retail site or religious institution, need site plan approval by the planning board. And then they would get a building permit, they would complete the improvements as shown on the building permits, and they would get inspections and be issued a certificate of occupancy.” 

It is not clear how the new law in the state – which took effect July 1 – might impact the dispute in Bedford. Tierney declined to speculate. “We have mediation in September,” he said.

Wuelper said he doesn’t expect the law to require towns to rip up existing ordinances and build from scratch. Rather, it will more likely affect how zoning boards and planning boards interpret their existing ordinances when it comes to religious organizations, following the new requirements of the law. 

To Wuelper, the new law is meant to balance the scales, not to tip them in favor of churches, although he would like to see towns restore their church’s central role.

“Every town in New England was built the same way,” Wuelper added. “A few people moved in; they built the church. It’s the first thing they built after their own houses. In the origin of the towns, the church was the locus of activity in the town.”

“That’s our history,” he added. “This is across the country.”

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Ethan DeWitt
Ethan DeWitt

Ethan DeWitt is the New Hampshire Bulletin’s education reporter. Previously, he worked as the New Hampshire State House reporter for the Concord Monitor, covering the state, the Legislature, and the New Hampshire presidential primary. A Westmoreland native, Ethan started his career as the politics and health care reporter at the Keene Sentinel. Email: [email protected]