Church Sues Calvert In Zoning Dispute
County Accused of Stifling Religion

By Matt Zapotosky
Washington Post Staff Writer
Sunday, August 12, 2007

Calvert County is among the last places you would expect government officials to be accused of imposing burdens on religious freedom. This is an area that one official affectionately called part of the Bible Belt, where churches dot the rural landscape and kids go to vacation Bible schools.

This is an area where, eight years ago, the county commission president at the time ignored a ban on prayer at a high school graduation and loudly recited the Lord's Prayer, prompting an agnostic student to leave.

But now Calvert County is facing a lawsuit from Chesapeake Church in Huntingtown, the culmination of a heated zoning dispute that has raged between county and church officials for months.

In a lawsuit filed in U.S. District Court in Greenbelt, the church says the county's uncompromising implementation of zoning regulations, which forced it to shut an adjacent food pantry and counseling center, has created a "substantial burden" on its ability to freely practice its religion. The county says that it didn't force the church to do anything and that the church needs to follow normal procedure by submitting the pantry's site plan to the Planning Commission.

At issue is a small driveway that connects the food pantry and counseling center to Route 4, a major transportation artery in Calvert. The county wants the driveway closed. The church says that would discourage other churches from using the center because it would force their members to access it through the main Chesapeake Church entrance.

The church recently shut the food pantry and counseling center, which operated for two years without any permits or site plan approval, after the county threatened to ask a court to close the center. Now it is seeking nominal damages and a court mandate that the county approve its site plan.

"Whenever you're going to abridge a fundamental right like free speech, then the state has to justify the imposition of that burden," said Eric Nestor, an attorney for the church. "I think the county is learning that churches are not treated like Wal-Mart. Churches are special under federal statutory protection."

Zoning disputes between churches and local governments are not new. The basis of Chesapeake Church's lawsuit -- a federal law called the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) -- has been cited by religious organizations across the country.

"Hardly a week goes by without a decision by a court on a RLUIPA case," said Patricia E. Salkin, associate dean and director of Albany Law School's Government Law Center in New York and an expert in land-use cases.

But the Calvert case is as legally complex as they come.

The act requires governments imposing a "substantial burden" on a religious land use to provide compelling justification for imposing that burden and to impose it in the least restrictive manner. The burden in this case, Nestor said, is the recommendation of the county Planning Commission's staff that the church close the pantry driveway.

"Fundamentally, what we're saying is we don't want to create a single, integrated facility where unbelieving persons are required to access our church," Nestor said.

But county officials argue no burden has been imposed because the county never rejected the church's site plan or forced the church to vacate its food pantry, said Daniel Karp, a Baltimore lawyer who is representing the county. The church decided to shut the food pantry, Karp said, and it has never brought a site plan before the county Planning Commission, which is the only body that has the authority to reject or approve the driveway.

Church officials said they won't go before the commission because they doubt it would overrule the recommendation of its staff members, who want the driveway closed.

"The reality is this is a self-inflicted wound," Karp said. "It appears to me the church has manipulated the process to make it seem like they are victims. None of this has to do with religion or anything else, except that every one of us has to follow the law."

County and church officials, who have spoken freely about the dispute in the past, referred all questions to their attorneys because litigation is pending.

One expert, provided with basic information about the case, said the church might have a hard time avoiding the Planning Commission.

David Goldberger, a professor of law at Ohio State University and a lawyer in one of the Supreme Court cases concerning the Religious Land Use act, said it might be difficult for the church to prove that presenting a site plan to the Planning Commission is an undue burden. And he said a higher court probably would need a final decision from an administrative body, such as the Planning Commission, before it would weigh in.

"They're going to have an uphill battle," he said. "You can't just simply ignore the requirement that you apply for the permit simply because you think they're going to turn you down."

A hearing on the case is scheduled for Sept. 10.

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