Texas church challenging city code preventing Sunday worship

A small Protestant church in Leon Valley, an enclave within the city of San Antonio, is challenging a zoning code that prohibits the church from holding Sunday worship services. The city code excludes religious assemblies from some zoning areas because they decrease the city’s tax revenue and interfere with commercial activity.

In 2007, revisions to the city code excluded churches from most of the city to maximize tax revenues, the Becket Fund for Religious Liberty reports. Auditoriums, convention centers, private clubs and schools are free to locate in the city’s retail zones, but churches are not.

The Elijah Group, an Evangelical Christian church, bought an existing church building in the city’s retail zones and so ran afoul of the new code.

On Monday the Becket Fund filed a brief in a federal appeals court defending the right of the church group to hold worship services in its building.

“It is shocking that a church would not be allowed to hold church services because they are not profitable to the city,” commented Lori Windham, Senior Counsel at the Becket Fund.

The Religious Land Use and Institutionalized Persons Act of 2000 reportedly requires cities to treat churches on equal terms with secular assemblies.

Windham said Leon Valley’s claim has “enormous” implications for churches across Texas and would set a precedent allowing cities to treat churches worse than secular assemblies.

This is one side of the story. Let’s not jump through our butts before we hear the other side.

From Religious group in Leon Valley, Texas fights to hold weekend services

Today, the Becket Fund for Religious Liberty filed a brief in federal appeals court defending right of the Elijah Group, a small Evangelical Christian church in Leon Valley, Texas, to hold worship services in its own church building. According to Leon Valley, the church is welcome to use its building for a day care and counseling center five days per week, but the local zoning code prohibits the church from holding worship services on Sunday. Religious assemblies are excluded from the relevant zoning area because they allegedly interfere with commercial activity and decrease the city’s tax revenue.
“It is shocking that a church would not be allowed to hold church services because they are not profitable to the City” said Lori Windham, Senior Counsel at the Becket Fund.
In 2007, the City of Leon Valley revised its zoning code to exclude churches from most of the city. It did so to maximize tax revenues. Auditoriums, convention centers, private clubs, and schools are free to locate in the city’s retail zones, but churches are not. When the Elijah Group bought an existing church building and tried to hold services there, it ran afoul of the city’s new zoning law.
A federal law, the Religious Land Use and Institutionalized Persons Act of 2000, requires cities to treat churches on equal terms with secular assemblies. But Leon Valley says it can treat churches differently because they don’t produce revenue like other uses.

From Court Rejects RLUIPA and Other Challenges To Refusal To Rezone :

In Elijah Group v. City of Leon Valley, 2009 U.S. Dist. LEXIS 92249 (WD TX, Oct. 2, 2009), a Texas federal magistrate judge recommended dismissing challenges under various provisions of RLUIPA, the 1st and 14th Amendments and the Texas Religious Freedom Restoration Act to a zoning ordinance of the City of Leon Valley, Texas. A church building that had been operating under a special use permit was foreclosed on by a bank and the building was leased by the bank to a different church which originally had wanted to buy the property. The sale was not finalized because the city had changed its zoning law to totally preclude church assemblies as a permitted use in areas zoned for "retail" use, and had refused the bank's request to rezone the area. The magistrate concluded that nothing requires the city to change its zoning Master Plan and rezone property just because the applicant is a church. He said: "Nothing in the RLUIPA or case law suggests a church is unreasonably limited just because it is excluded from a zoning district it prefers." Otherwise a zoning law would be required to permit churches everywhere.

I don't know if anybody around here has a Justia or Lexis-Nexus subscription and can look up the references...

Nestled next to the mounting construction on Bandera Road(Hwy 16), amid several businesses along Leon Valley's main thoroughfare, sits a seemingly vacant dome-shaped building once known as the Church on the Rock, now called the Restoration Center.

Since 1996 the property has been home to various church congregations, but its most recent owners, the Elijah Group Inc., have found themselves pushing litigation with the city over the legality of worshiping there.

The city claims a church is no longer allowed on the property due to zoning regulations, but the owners contend the city has unconstitutionally stacked the zoning deck against churches in general, pushing them away from higher-priced land and toward the fringes of town.

In 2003 the city adopted a master plan that recommended religious assemblies receive Business 2 zoning, which could also allow for a multitude of retail businesses. The land at 6401 Bandera Road was zoned accordingly — but a 2007 change to the zoning rules restricted religious assemblies to property zoned Business 3, which also allows storage units and warehouses.

The previous owners had to obtain a special use permit that allowed them to continue worship services in the two buildings that sit on nearly 4 acres. Such a permit was not available to churches under the new ordinance, but the congregation's use of the property was grandfathered. When it left, the new owners could continue using the land for worship services until the permit expired, according to the city.

The Elijah Group bought the property last October after the Church on the Rock vacated the premises in July 2007. According to the Bexar Appraisal District, the Happy State Bank foreclosed on the property in September 2007. But Ryan Henry, the attorney defending the city against the Elijah lawsuit, said the official date of abandonment was Oct. 28, 2007, more than four months after the church was vacated.

“Under the city ordinances, the property is considered abandoned and any uses cease 120 day after the property is vacated,” Henry said. “Even if the use had been resumed in that time period, the SUP permit application wouldn't necessarily transfer over.”

The new owners tried to get the land rezoned back to B-2, but the zoning commission and the council rejected the request.

Henry said the Elijah Group purchased the facility intending to eventually open an elementary school and day-care facility. It obtained a temporary certificate of occupancy to operate a day-care center but never opened one and began conducting church services instead, he said. The document allowed the owners to connect utilities but not to actually occupy the buildings because the structures needed repairs.

City officials and staff said they could not comment on the pending litigation.

“The city's stance is that currently they cannot legally utilize the premises for church purposes,” Henry said. “And no final certificate of occupancy for any use has been approved.”

“The city is attempting to give them the opportunity to rectify as many issues as they can,” he added.

The owners say the issue goes beyond just one church and one piece of land.

“We're alleging that their zoning ordinances are discriminatory and unconstitutional against churches in Leon Valley,” said the attorney for the Elijah Group, Daniel Whitworth of San Antonio.

The city's motives are financial, the church has argued, describing in court documents comments by City Manager Lanny Lambert about the land being “prime real estate.” Before the Elijah Group purchased the property it was aware there might be legal problems, said Darryl Crain, the Restoration Center's pastor, who said he had several meetings in which Mayor Chris Riley and city staffers alluded to Leon Valley's financial concerns.

“So they told me they're in a situation where all the expansion is going toward (Loop) 1604 and Helotes area,” Crain said. “And they're left with the dilemma of, they're landlocked. ... This is from my meetings with them, they're landlocked. And like all small communities they have a dilemma: They can increase property taxes on businesses or they can increase (residential) property taxes and, of course, nobody wants that. So they're looking for more revenue in their businesses.”

“We did not want to get into litigation,” he continued. “And we want to work with the city. We're not mad at anybody. We understand their situation, that their taxes are like a lot of cities, especially now with the economy, businesses are hard pressed. We completely understand that. ... We want to work with the city to assist in every avenue, spiritual, financial, whatever we can do. The thing is that this is not an opinion, this is an absolute hard and fast law that has been violated here.”

Whitworth said Leon Valley is sending a clear message that more churches aren't wanted in the city.

“There have been cases all over the county, state and federal,” Whitworth said. “The law is pretty strong on the fact that you cannot exclude a church from an area for economic issues or tax issues or retail issues. So what the city has done is basically passed an unconstitutional zoning law that is going to apply to anybody that wants to purchase that church.”

“What they're doing,” he added, “is sending a clear message to churches that, ‘We don't want churches in Leon Valley,' because who wants to operate in an industrial area? Churches have historically, back to the Founding Fathers, been located in areas near residential where people travel and people shop and drive by. Who's going to want to drive to a kind of a rough area to worship?”

The Elijah Group sued on Oct. 31 in state district court but the lawsuit was moved to federal court. Leon Valley promptly filed for a temporary restraining order on Dec. 5 after the buildings failed a fire inspection. That order expired Dec. 19 and the owners remedied the fire code violations, which have allowed them to continue worship services but not operate a school or day care.

A trial is set for Sept. 21 and Crain is optimistic the church has a good chance of winning.

“We've made sure, before we even got involved in this,” he said, “that this was something that was not just winnable, that was overwhelmingly, favorably winnable.”

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