PHOENIX โ 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 โ which they could have built on the site without any further approval โ but instead an โevent venueโ 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 โthat imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.โ
But it does allow those restrictions if there is a โcompelling government interestโ 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 countyโs regulations violated the federal law.
In his arguments Tuesday, Kerry told the appellate judges that failure should not be held against his clients.
โThese are people who are trying to establish a ministry,โ he said. โThey took all their money they had available, they put it in this property.โ
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.
โIn theory, maybe they could haveโ found another site, he said.
โBut as a practical matter, pick up and find another $200,000 to run out and buy another property while theyโre trying to sell this one, itโs not practical,โ Kerry told the judges. โAnd itโs not (legally) necessary.โ
At this point, Kerry is no longer seeking to have the courts overturn the countyโs 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 theyโre wanted in residential zones, without preconditions.
But he said all the evidence gathered by the zoning inspector showed thatโs 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 coupleโs 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 โchurchโ does not end the inquiry into whether denial of the building permit violated the coupleโs rights under federal law.
โAlthough the Mesquite Grove Church might not be a โchurchโ as defined by Arizona zoning law, it could be โreligious exercise,โโ she said. โThe question remains whether it was โsubstantially burdenedโ by this particular ordinance that narrowly defines โchurchโ in a way that precluded them from using their site.โ
Flagg, however, said the coupleโs claim fails, no matter what standard is used to define a church.
โTo show โsubstantial burden,โ they canโt just show, โWe werenโt allowed to locate on this parcel,โโ he said.
โThey have to show that we were substantially burdened in our ability to locate at a suitable site in Pima County,โ Flagg continued. โAnd theyโve made no effort to show that in this case.โ
But Judge Richard Paez, pointing out the claims of financial hardship, said heโs not necessarily convinced the couple had to make such an effort.
The judges gave no indication when they will rule.
