Property rights: not a given for churches

Donald Trump doesn't always have the final say. When the real estate mogul wanted a New Jersey redevelopment agency to take Vera Coking's home by eminent domain to add a limousine parking lot to his casino, the state superior court said no. That would be taking private property for private gain, not public use.

Yet David doesn't always defeat Goliath in such matchups. And there are some who worry that churches and the property of other religious groups - which generate no tax revenue - could become increasingly vulnerable parties to eminent domain seizures for economic development purposes.

The US Supreme Court is preparing to hear arguments on eminent domain next week in Kelo v. City of New London (Conn.).

"The exact issue before the court is, can you condemn property solely to generate taxes and create jobs. If the court rules that you can't, it will protect churches. Otherwise, churches will be in grave danger," says Dana Berliner, attorney at the Institute for Justice, the law firm representing property owners in the Kelo case.

In recent decades, synagogues, churches, temples, and mosques have run into difficulty on zoning and land-use matters as municipalities, with tightening budgets, grew more reluctant to support tax-exempt uses within their boundaries. The problem became so widespread that Congress passed a law in 2000 requiring munici-palities to demonstrate a compelling reason for denying permits to houses of worship.

Now some say the Supreme Court could open another path to interfering with religious expression.

The Becket Fund for Religious Liberty, which represents faith groups in zoning and landuse cases, filed an amicus brief in the Kelo case, arguing that such groups would be "singularly vulnerable to being taken" by eminent domain if the court sides with the city.

"Any commercial use is likely to be preferred over a religious use," says Jared Leland, legal counsel at the Becket Fund. "To be able to practice your faith, you need a place to congregate and worship."

Just ask the Rev. Fred Jenkins, pastor of St. Luke's Pentecostal Church in North Hempstead, N.Y. While holding services in a rented basement, his small congregation saved money for a church for more than a decade. In 1997, St. Luke's bought a downtown property with a partially built church they intended to complete. They sought a building permit and parking variance, drew up construction plans, and borrowed money to finish the project.

"Then they sprang the eminent domain law on us," the pastor says. The local development agency condemned the property for retail development. St. Luke's soon learned the property had been targeted for redevelopment back in 1994, but no one told them as they went through the purchase and planning process.

The church has been demolished and the property added to other parcels that are part of a downtown renewal project involving housing, a supermarket, and a bank. North Hempstead held the groundbreaking. While others in the Long Island community are delighted to get the boost for the neglected suburban area, St. Luke's is struggling to survive.

"This has been devastating for our church. Some people have left town and our membership has dropped off," says Mr. Jenkins. "We're still renting the basement and also having to pay off the mortgage for the church building."

The government offered the congregation $80,000 for the property, $50,000 less than they paid for it. St. Luke's is litigating for a fair value for the property. "We spent a lot of money getting prepared for construction, and it was unfair not to have said anything to us," Jenkins says.

The Fifth Amendment to the US Constitution does allow governments to take property for public use - traditionally roads, schools, and parks. A half century ago, the use of eminent domain was expanded to include condemning blighted areas for redevelopment purposes. In recent decades, many citizens are decrying municipal actions to take property for economic development that might yield higher tax revenues than current uses.

In its brief in the Kelo case, the National League of Cities says that eminent domain is "often indispensable for revitalizing local economies, creating much-needed jobs, and generating revenue that enables cities to provide essential services."

For many public officials, that sounds exactly like a public use, even if direct benefit goes to private developers. It is a fundamental economic development tool for the long-term benefit of the community that must be protected, officials say.

As for potential abuses, "there are several checks on the indiscriminate use of eminent domain," says David Parkhurst, NLC's legislative counsel. "If the community doesn't like a certain decision, they can make that known at the ballot box. State law can prohibit its use beyond certain limits. And the media provide a spotlight and public scrutiny when such cases bubble up."

In Cypress, Calif., the Cottonwood Christian Center needed space for a burgeoning congregation and new ministries. In the 1990s, it spent five years assembling land parcels for an 18-acre site to build a large church complex. Cottonwood then went through a three-year process seeking permits to build on the purchased land. But church leaders learned the city had begun seeking a retailer - a large discount store - to locate on their land.

In 2002, when Cypress Redevelopment Agency moved to take the property by eminent domain and make it available to Costco, the church filed a lawsuit, citing violations of US and state constitutions and the 2000 federal law on religious land use. "This is something we hoped would not be necessary, but the city's actions left us no choice," said Pastor Bayless Conley.

Cottonwood's story has a happier ending than St. Luke's, however. A US district court judge granted an injunction preventing the city from seizing the property, saying there was strong evidence its actions "specifically aimed at discriminating against Cottonwood's religious uses." The judge also doubted that turning the land over to Costco was a public use.

"If revenue generation were a compelling state interest, municipalities could exclude all religious institutions from their cities," the judge wrote.

The city then worked out an agreement with Cottonwood amounting to a land swap; the church sold its property to the city and bought 28 acres of a neighboring golf course.

The question is which direction the court will go in Kelo and what impact it might have on such cases. Some expect new limits on government power. A landmark ruling on eminent domain at the state level - used for 20 years as precedent in many cases, including by the state court in Kelo - was reversed by the Michigan Supreme Court just six months ago.

In the 1983 decision in Poletown v. City of Detroit, the Michigan court approved the taking of 500 acres to sell to General Motors for a plant. Hundreds of homes and businesses and six churches were condemned. In July 2004, the court called the Poletown decision "a radical departure from constitutional principles" and overturned it in County of Wayne v. Hathcock.

"[I]f one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, mega-store or the like," the court said.

The US Supreme Court accepted the Kelo case shortly after the Michigan court rendered that decision.