Zoning and police power

The legal authority for zoning comes from the "police powers" vested in government, the responsibility for protecting the health and welfare of the public. See "Police power and the public trust: Prescriptive zoning through the conflation of two ancient doctrines" from Boston College Environmental Affairs Law Review.

With zoning, for the most part, all uses are created equally _within_ zones, so zoning regulations typically call for "matter of right" for uses within zones. Certain uses are designated matter of right within zones too. For example, in DC, churches are "matter of right" in all residential zones.

Now I disagree with that. I have no qualms with churches (I guess I am closest to an atheist, but I like religious architecture) _but_ I think they need to be located in more specific places, rather than anywhere within a zone, places where the church's transportation demand (and parking demand) can be better met by existing infrastructure.

Now the article in yesterday's Post, "Full Up, Fed Up On God's Avenue," about overconcentration of churches on 16th Street NW is another thing entirely. My suggestion doesn't address overconcentration generally, just location. According to my suggestion, 16th Street NW would be a logical place to locate a church. It's a major street, with bus lines, etc. The article has a nice graphic of all the churches on or by the street, which total over 70.

The article states that a different section of 16th Street, from Colorado Avenue to Military Road, requires special exception approval for a church to locate there. In actuality, have any churches been denied the ability to locate on that stretch of the street, or does it merely require negotiation and the creation of transportation demand management plans and a more focused response to resident concerns?

Anyway, I do think that municipalities probably could make an overconcentration argument in two areas:

churches on particular streets; and
group home facilities;

and justify this under the idea of "police power," _despite_ federal laws that require churches to have equal protection under local zoning (RLUIPA) and laws that protect the rights of the disabled (usually, group homes for offenders, substance abusers, children, etc., end up getting protections under the ADA laws).

But it would have to be a well-crafted challenge.

And yes, I am not a lawyer so you could take this suggestion with a grain of salt.

I get a kick out of some people's parochialism, e.g., the pastor who disagrees with the interpretation of Mormonism and so he would be happy to deny the Mormon Church the privilege of building, or the people fighting the McLean Bible Church's quest to hold services in the Uptown Theater on Sundays (better to pay rent to an extant building rather than have them build a massive church exempt from property tax) because of their position on gays. In either case, the Bill of Rights and the first amendment's freedom of expression allows for the protection of difference of opinion and behavior...

But the overconcentration argument would be different, maybe. Maybe not.

With the group homes, the argument would be do the rights of the minority--the residents--have no protection from the economic and social impact of an overconcentration of facilities serving people with "problems" when the impact of the problems end up impacting the residents in significant ways.

A good example would be the "overconcentration" of methadone clinics in the North Capitol and Florida Avenue area of the city.