Can the operation of a homeless shelter constitute a church use under local zoning regulations? A court in the Horse Capital of the World, Lexington, Kentucky, will soon be answering that question.
Heres the story. Back in 2010, Breakthrough Ministries obtained a conditional use permit to operate a small church with a sanctuary capable of seating 30 people for services twice per week in an area zoned B-4 (wholesale and warehouse use). Soon after, Breakthrough Ministries vacated the property and the new owners, Emmanuel Apostolic Church Action Center, opened a homeless shelter known as the Community Inn on the property. Since then, the Community Inn has provided housing to as many as 75 homeless people each night from 7:00 p.m. to 8:00 a.m., more than twice the number of people and more than three times as often as had been permitted for church use. In addition to providing shelter for the homeless, the Community Inn provides Bible courses during the week and traditional religious services on Saturday mornings.
Reports of loitering, panhandling, and urinating in the streets among those waiting in line for nightly shelter, however, have cast the Community Inn in an unholy light in the eyes of those in the community. Opponents argue that the Community Inn is in violation of the conditional use permit, allowing a church, not a homeless shelter. A May 11, 2012 Planning Commission Staff Report reached the same conclusion and recommended that the permit be revoked. The report states that ” [t]he outcome of this matter will have a significant impact on zoning interpretation as to what constitutes a church and will also impact how houses of worship may seek conditional use approval in the future.”
The Community Inn maintains that its operation of the shelter is a form of church use. Elder James McDonald, minister of Emmanuel Apostolic Church, stated: “The problem is we have a different idea of what a church really is. The Community Inn, McDonald added, is not a church as society sees it. . . . [but] the presence of the Lord is in this place. A lot of people have been set free of drugs. “
Lexingtons Board of Adjustment saw things differently and, on June 8, voted 5-0 to revoke the permit. The Board, however, gave the Community Inn six months to find a new location.
Rather than search for a new location, the Community Inn filed a lawsuit, alleging that the Citys revocation of the conditional use permit was improper because its operation of the homeless shelter was valid as a church use under the zoning regulations (Click Here to read the Complaint). Under the regulations, the B-4 zone allows as a conditional use: “Churches, Sunday schools, and church-related schools for academic instruction . . . . “
Interestingly, the Community Inn challenges the Boards relocation as a violation of the First Amendment, and not as a violation of RLUIPA. If the Community Inn sued under RLUIPA, such a claim would likely hinge on whether the operation of the shelter was a form of religious exercise, which RLUIPA defines as any exercise of religion, whether or not compelled by, or central to, a system of religious belief. It further provides that [t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose. As one court recently found: ” [s]imply calling ones practice religious exercise does not make those practices part of the religion.” Moore-King v. County of Chesterfield. In that case, the court determined that, based on the particular facts of the case, fortune-telling did not constitute religious exercise under RLUIPA.
Some courts have already considered whether the operation of a homeless shelter amounts to religious exercise. For example, a court in Florida found that although running a homeless shelter may have been a deeply-held religious belief, under the specific facts before it, the church failed to prove that operating the shelter at that particular location was fundamental to its religious exercise. Westgate Tabernacle, Inc. v. Palmer Beach County. In another case, a federal court in Illinois found that even though providing shelter to the homeless is an essential religious exercise of the church, requiring the church to obtain a conditional use permit to operate a homeless shelter did not substantially burden the churchs religious exercise. Family Life Church v. City of Elgin. The court found that “[p]roviding shelter to the homeless is an essential religious exercise of the members of Family Life.”
While it is unclear if those decisions may serve as guidance for Kentuckys state court, questions as to what constitutes church use under zoning regulations or religious exercise under RLUIPA have far-reaching implications for municipalities and religious organizations. We will keep a close watch on what develops in the case of the Community Inn and the “Horse Capital of the World.”