Statutory Preference for Religious Land Use: Divining What is Religious and What is Reasonable

Abstract

In Martin v. Corporation of the Presiding Bishop, 747 N.E.2d 131 (Mass. 2001), 53 ZD 200, on page 17, the Massachusetts Supreme Judicial Court tackled two issues inherently raised by cases of statutorily granted preferences for religious land uses, namely, what is a religious land use and what is reasonable regulation of a religious land use. The specific questions before the Massachusetts court, measured against that state's statutory preference scheme, were whether a church steeple at its proposed height constituted “use of land or structures for religious purposes,” and whether the town's routinely imposed height limit would be a “reasonable regulation.” In other cases around the country, under similar legal preferences, the questions might be whether parking lots, day care centers, and commercial facilities owned by religious institutions are religious land uses, and whether restrictions on the number of parking spaces and the size of centers and facilities are reasonable. Martin stands for the proposition that aggressive judicial second-guessing of a religious institution's view of what is religious and what is reasonable regulation is inappropriate. Just as the judiciary is not a “super zoning board” in garden-variety due process-equal protection zoning cases,¹ it is not a “super religious authority” in statutory preference cases. At the same time, Martin fails to offer an analytical approach capable of illuminating, let alone resolving, a significant spectrum of potential religious land-use conflicts.