TRI In The News

City Denies Church’s Request

February 22, 2013

From Valley News

Lebanon — The traveling evangelical congregation of the Upper Valley will remain nomadic, at least for now.

The Zoning Board of Adjustment this week denied a zoning variance sought by Riverbank Church, which has operated in the Upper Valley for nearly three years without a permanent place of worship. Riverbank was seeking the variance to convert a warehouse — currently occupied by Sullivan Tire on Plaza Heights Road next to the Lebanon Airport — into a church.

“We have the firm belief that bigger things are yet to come,” said Dylan Nicholas, the production leader for Riverbank Church. “There’s something else bigger, better, waiting for us out there.”

Under the city’s zoning ordinance, which dates back to the 1970s, churches are disallowed only in industrial zones. Riverbank’s attorney, Richard Mullaly, raised the point that the ordinance allows for several special exceptions in those industrial zones, such as private post-secondary educational facilities, opera houses, group day care facilties and private health clubs.

“All those could be expected to attract numbers of people just like the church would,” said Mullaly.

Speaking to the church’s plans for moving forward, Nicholas said that he wanted to avoid giving “too many details for legal reasons, but we are definitely still looking in Lebanon.”

“There’s always potential for different things to pop up that we might not be aware of,” he said. “We’re very optimistic about what is going to be there for us.”

Calls to Mullaly’s Lebanon offices were not returned yesterday .

John Whitehead — a constitutional attorney and president of the Rutherford Institute, a Virginia-based civil liberties and human rights organization that has advocated in hundreds of cases that involved conflicts of zoning laws and religious organizations.

Whitehead said that the Religious Land Use and Institutionalized Persons Act, which was enacted by Congress in 2000, was drafted to protect religious groups that were being “pushed into residential areas” by zoning laws, targeted because of their tax-exempt status.

He said that when it comes to churches and permitted zoning, the burden of proof is on the local government to show a “compelling state interest” in keeping churches out of certain zones, such as industrial ones.

“I think (the Lebanon Zoning Board of Adjustment is) treading lightly on that particular law,” he said.

Whitehead said that the fact that special exceptions were in place for other uses that could be viewed as “meeting places” similar to a church — such as an opera house — means that the law, which was designed to prevent discrimination against religious organizations, “falls into play.”

“That hits you right on the head,” said Whitehead.

At the Zoning Board hearing Tuesday night, members asked Riverbank’s pastor Chris Goeppner whether the church would file for tax-exempt status if it received the variance, according to an audio recording of the meeting.

“Yes, but that should have no play in this at all,” Goeppner said.

Planning and Zoning Director Andrew Gast-Bray, who was at the meeting, said that he knew which board member asked the question but declined to provide the name yesterday.

The identity of the questioner was unclear from the audio recording.

“That was just an idle question of curiosity, not something that weighed in on the application at all,” Gast-Bray said. “I think that arose from the fact that Riverbank is not a church that is well recognized within the normal denominations.”

Nicholas said that church members discussed the comment afterward but wouldn’t say whether or not he thought the tax exempt status of the church played a role in the board’s decision.

“I’m not a big politics guy, so it’s tough for me to weigh in too much with that,” he said.

In defending the town’s list of special exceptions for industrial zones, Gast-Bray said that “there are very few places that an opera house can go,” and that the loud nature of such a venue would harmonize well with other industrial users, who are zoned away from residential areas because of the noise that they produce.

“The question is, what are the nuisances provided by those particular uses?” said Gast-Bray. “And the opera house was close enough to industrial that it worked.”

Gast-Bray said he is not an “expert in this particular issue, but I do have a book of legal decisions relative to planning and it’s not a slam dunk either.”

He added that industrial zones make up only a small portion of the city’s zoning map — in the “small southwestern corner” near the airport and the eastern side of the Route 120 corridor — and stressed that churches are permitted virtually everywhere else in the city.

In declining to issue the variance, the board ultimately found that the site in question was suitable for its current zoning of “light industrial.” It also found that there were other options for the church to pursue in its quest for a permanent home.

Nicholas said that Riverbank will continue to look at other options, and that its followers would “persevere” and remain excited about the possibility of finding a permanent home.

“A church is not a building, it’s a body of people,” he said. “We want to keep that on our forefront looking forward.”