Pima County, couple argue about what is a church

PHOENIX — A fight between Pima County and a couple wanting to build a chapel is forcing a federal appeals court to consider who gets to decide what exactly is a church.

Attorney Robert Kerry asked the judges of the 9th U.S. Circuit Court of Appeals on Tuesday to rule that county zoning officials improperly denied the necessary permits for Mesquite Grove Chapel to build a church in the Tanque Verde Valley. He said the denial violated federal laws designed to keep governments from imposing land-use regulations that substantially burden the free exercise of religion.

But Deputy County Attorney Andy Flagg said it was clear to zoning officials that what John and Debi Fazio wanted to build was not a church — which they could have built on the site without any further approval — but instead an “event venue” subject to county zoning. He pointed out the number of weddings that would be held, for a fee, as well as other plans for the site.

Flagg acknowledged under questioning that the operation, even if the court concludes it is not a church, still could fall within the protections of the federal religious protection laws. But even then, he said, the county did nothing wrong, as the couple could have easily found an alternate site for what they wanted to build.

Key to the case is the federal Religious Land Use and Institutionalized Persons Act. It prohibits government from imposing any land-use rule “that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.”

But it does allow those restrictions if there is a “compelling government interest” and that the regulations are the least-restrictive means of furthering that interest.

In this case, a trial judge said the failure to look for any other site precluded the couple from saying that the county’s regulations violated the federal law.

In his arguments Tuesday, Kerry told the appellate judges that failure should not be held against his clients.

“These are people who are trying to establish a ministry,” he said. “They took all their money they had available, they put it in this property.”

Kerry said they came up with a development plan to deal with some of the concerns of the zoning inspector, only to find out that the necessary building permits would be denied.

“In theory, maybe they could have” found another site, he said.

“But as a practical matter, pick up and find another $200,000 to run out and buy another property while they’re trying to sell this one, it’s not practical,” Kerry told the judges. “And it’s not (legally) necessary.”

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At this point, Kerry is no longer seeking to have the courts overturn the county’s decision. He said the couple lost the property in foreclosure and now simply want financial damages.

Flagg told the court the couple would have had no argument from Pima County had they actually wanted to open a church. He said county zoning regulations permit churches to go pretty much wherever they’re wanted in residential zones, without preconditions.

But he said all the evidence gathered by the zoning inspector showed that’s not what was occurring.

For example, she found that anyone who wanted to conduct a wedding had to pay a separate rental fee for use of the property, a required separate donation to the church, and outside bartending and security requirements. There also were Internet ads for the couple’s existing wedding properties as well as the promotion of Mesquite Grove as a new location for a bridal fair.

And there was the fact there would be an average of 70 weddings a year, far more than the typical church.

But appellate Judge Kim Wardlaw told Flagg the question of what Pima County considers to be a “church” does not end the inquiry into whether denial of the building permit violated the couple’s rights under federal law.

“Although the Mesquite Grove Church might not be a ‘church’ as defined by Arizona zoning law, it could be ‘religious exercise,’” she said. “The question remains whether it was ‘substantially burdened’ by this particular ordinance that narrowly defines ‘church’ in a way that precluded them from using their site.”

Flagg, however, said the couple’s claim fails, no matter what standard is used to define a church.

“To show ‘substantial burden,’ they can’t just show, ‘We weren’t allowed to locate on this parcel,’” he said.

“They have to show that we were substantially burdened in our ability to locate at a suitable site in Pima County,” Flagg continued. “And they’ve made no effort to show that in this case.”

But Judge Richard Paez, pointing out the claims of financial hardship, said he’s not necessarily convinced the couple had to make such an effort.

The judges gave no indication when they will rule.