Original Photography by Kevin Dooley (Some Rights Reserved)

Original Photography by Kevin Dooley (Some Rights Reserved)

Two Houston churches are using the Texas Religious Freedom Restoration Act (“TRFRA”) to challenge the Houston Housing Authority’s actions to acquire their properties by eminent domain as part of an urban renewal project.  The Latter Day Deliverance Revival Center (“Center”) and the Christian Fellowship Missionary Baptist Church (“Fellowship”) are both located in Houston’s Fifth Ward neighborhood, which is known for a history of violence and crime, and has been called the “bloody Fifth.”  The Housing Authority began eminent domain proceedings against the Center, but there is some dispute as to whether it has started the same action against the Fellowship.  The Housing Authority is taking the private property owned by the Center across the street from the Center’s house of worship.  The Center claims in the lawsuit that it uses this land for ministry activities, including youth centers, food pantries, and providing education and assistance to the community.

The Center asserts that the Housing Authority “wants to steal these churches, bulldoze them and use them for a parking lot for a doctor’s office.”  The Housing Authority contests this characterization, noting that it “had not begun any eminent domain process against any church building” and added that it had only sought to acquire two vacant parcels owned by the churches.  It maintains that it is not going to develop a parking lot for a doctor’s office, but instead for an affordable housing project.

It is noteworthy that the churches are using the state RFRA to challenge the eminent domain proceedings, but not surprising given how courts have resolved Religious Land Use & Institutionalized Persons Act (“RLUIPA”) challenges to eminent domain actions.  Most courts have ruled that RLUIPA does not apply to eminent domain proceedings.  RLUIPA’s substantial burden provision applies to any “land use regulation,” which the Act defines as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.”  Courts have generally ruled that an eminent domain action is not a “land use regulation” as defined by the Act.  See St. John’s United Church of Christ v. City of Chicago (7th Cir. 2007) (“if Congress had wanted to include eminent domain within RLUIPA, it would have said something.”); Congregation Adas Yerim v. City of New York (E.D.N.Y. Dec. 8, 2009) (eminent domain is not a “land use regulation” under RLUIPA); but see Cottonwood Christian Center v. Cypress Redevelopment Agency (C.D. Cal. 2002) (rejecting city’s argument that eminent domain is not a “land use regulation” under RLUIPA).

Unlike RLUIPA, the TRFRA is not limited to land use regulations, but mirrors the federal Religious Freedom Restoration Act and applies to any law or action.  If the churches are successful in convincing the court that the TRFRA should apply in an eminent domain action, it would mean that the Housing Authority would not only have to justify taking the churches’ properties as a “public use,” but would also have to establish that their actions are “compelling interests” advanced in the “least restrictive means” possible, so long as the churches show substantial burdens on their religious exercise.  No local government wants to be in this position.

President and CEO of the Housing Authority Tory Gunsolley stated that without these properties, its redevelopment plan may have to be abandoned:

The sad thing is, if the outcome is, they win, then I think that block is going to stay decrepit for the foreseeable future.  [The churches] haven’t made any progress on executing a vision on redeveloping that block.  Most of the houses are in extreme disrepair.  It needs help and it needs investment, and we are trying to invest in that community.

The Daily Signal reports on this matter.