The Arizona Legislature is advancing a bill that would allow churches anywhere non-religious groups are permitted to operate, despite opposition from city officials who fear the bill would create a host of practical and legal problems.
The bill, H2596, was approved by the House earlier this year and is now moving through the Senate. Members of the Senate Judiciary Committee approved H2596 by a 4-to-3 vote on March 22; Republicans supported the measure while Democrats opposed it.
The discussion in committee delved into the practical as well as the theoretical. It also put into focus the difficulty of legislating anything that deals with religion, especially regarding bills that aim to set guidelines for the interaction between churches and governmental entities.
Supporters said the bill buttresses a federal law that prohibits discrimination against churches in zoning matters. They said it will clarify the federal law and prevent unnecessary legal battles between churches and local governments.
Rep. Steve Yarbrough, a Republican from Chandler, said he sponsored the bill to prohibit government entities from using economic reasons – for example, the tax-exempt status of churches – to deny religious groups the ability to assemble in a specific area.
“The essence is: Don’t treat churches in a discriminatory fashion compared to other land users,” said the Republican from Chandler.
But opponents of the bill said it would create legal problems for local governments. They also said rather than providing for a level playing field, it imbalances the situation in favor of religious groups.
Three years ago, Yuma’s planning and zoning commission blocked a religious group’s attempt to start a church in a building downtown, sparking a lawsuit on grounds that the city had violated several federal laws and the U.S. Constitution.
The city successfully defended itself in court by arguing that allowing a church on Main Street would have been inconsistent with its efforts to develop the strip into a tourism and entertainment hub.
A church at that location would have disrupted Yuma’s plans because state law prohibits cities from issuing new permits to establishments that serve alcohol if they would be within 300 feet from a church. That would have meant about one-third of the city’s entertainment district would have been off limits to new drinking establishments.
Members of the Senate committee didn’t say whether they had the Yuma case in mind when the voted on the bill, but one of the Democrats on the panel brought up a similar scenario.
Sen. Ken Cheuvront, a Democrat from Phoenix and a restaurateur, asked his colleagues to consider the possibility of a landowner who makes plans to build a wine bar, but then a church opens up across the street.
“I go to get my license. I am now prohibited from putting my wine bar on there because it is within 300 feet (of the church),” he said.
Yarbrough acknowledged the complication and said he would be willing to draft new language that would define a particular area, say a commercial district, where the 300-foot buffer-zone restrictions wouldn’t apply.
That wasn’t enough to appease Ken Strobeck, executive director of the League of Arizona Cities and Towns. He said the bill would be too far-reaching because it would prohibit cities from acting in their own best interests. He said federal laws already protect churches from unreasonable zoning restrictions.
“So much of the language is new and appears to be contradictory that we feel like this is a going to be a full employment act for lawyers,” he said.
One provision of the bill that was written using subjective language raised a whole different set of concerns. The bill specifically allows religious groups to use property they own “in a manner that the person (religious group) finds satisfactory to fulfill the person’s religious mission.”
“Under this language, we can find ourselves in a legal bind where someone says that certain types of sexual activity are part of their religious mission,” said John Wayne Gonzales, a lobbyist for the City of Phoenix.
Gonzales cited a recent situation in which an adult-oriented business claimed it was religiously based when it applied for permits to relocate to Phoenix.
“We believe that basically under this law, we could not regulate that because they would argue that it’s part of their religious mission,” Gonzales said.
But Sen. Chuck Gray, the committee chairman, didn’t buy the argument. He said any entity whose operations fit the definition of adult-oriented business would already come under the purview of zoning regulations and other rules that govern such activities.
“So they fit the adult business definition and thereby, we would not be discriminating against that particular church by holding them to the same laws that we hold all other organizations,” Gray said.