Zoning as a Political Tool

Zoning, as a planning practice, started in the U.S. in the late 1800's. The beginnings of zoning, or creating separate land use areas, were also attempts to restrict certain groups of people from living or working in particular neighbourhoods (Hason, 1977). From 1870 to 1890, municipalities in California passed laws that prevented Chinese laundries from locating in residential districts. The government of the day asserted that the laundries were fire hazards and public nuisances (Hason, 1977).

It was not until the early 1900s, however, that the notion of zoning achieved secure legislative status. In New York City, the merchants in the clothing industry wished to create distance between their luxury retail outlets and the sweatshops where clothes were produced. The garment industry, on the other hand, wished to retain the close, convenient proximity to its customers (Hason, 1977). Department store owners advocated a zoning by-law that would ensure clothing factories could not be located close to their stores. The merchants were clear in their purpose; "They wanted this because of the things which were the essences of the garment industry...the strange tongues, the outlandish appearance and the very smell of its immigrant labourers...violated the ambience in which luxury retailing thrives" (Hason, 1977). In 1916, the state of New York adopted the recommendations of a pro-zoning report.

Significantly, the majority of literature devoted to exclusionary zoning focuses on housing rather than places of worship26. This absence of material in the scholarly literature illustrates the increasing secularization of North American society and the corresponding decrease in attachment to faith based communities.

Recommendations for Change

Clearly, many challenges await religious institutions seeking spaces of their own. However one understands the exclusion of persons of colour and persons of "minority" faiths, it is crucial to plan for inclusion.

Legal Remedies

(A) Procedural Change

Legislation currently in place requires that neighbours be notified of a proposed development in their vicinity. Although mediation is recommended as a preliminary measure, there is no statute that requires it. A mandatory meeting might serve dual functions. It would offer a structured opportunity for opponents to discuss genuine differences. It might also reveal racial biases in a "safe" environment before litigation begins and hence provide mechanisms for them to be addressed.

(B) Substantive

Aggrieved congregations could approach the Ontario Human Rights Commission (OHRC) to scrutinize municipal decisions. However, Section 34(1)(a) of the Human Rights Code states that when; "the complaint is one that could or should be more appropriately dealt with under an Act other than this Act; the Commission may, in its discretion, decide to not deal with the complaint." A complainant could, at least theoretically, appear before the OMB, raise the human rights violation and obtain a decision indicating that the OMB does not have jurisdiction to adjudicate such matters. Then, perhaps, a congregation could obtain assistance from the Commission.

However, even in this situation, unless the investigation of these complaints were expedited, congregations would be paying taxes on land they could not use. The OHRC takes, on average, about fifteen months to resolve a complaint (OHRC, 2002). If a congregation were simply requesting renovations to an existing building, approaching the OHRC might be an effective, albeit lengthy, remedy. If a place of worship were seeking to build, it would constitute a financial loss.

Creating legislation similar to the R.U.I.L.P.A. in Canada could provide legal protection to religious organizations seeking to build, renovate or expand their premises. If the onus to prove that the proposed development is unworkable shifts from the faith group to the planning department and/or the neighbourhood opposition, perhaps hostile groups would be more reluctant to litigate.

Some may argue that section 2 of the charter protects the right to religious freedom for all Canadians. Indeed, that may be true. Enforcing those rights, however, is an expensive and lengthy process.

One recent case, argued before the Quebec Superior Court, did refer to the charter in its decision27. Orthodox Jews in Outremont had asked the municipality for permission to erect an eruv. An eruv is string or wire attached to hydro poles, establishing boundaries within which Orthodox Jews may walk, push or carry during Sabbath or holy days. Despite the presence of eruvin in many cities in Quebec, the municipality of Outremont adamantly refused to allow their installation. Outremont's position was simple. The city could allow nothing affiliated with any religion in the public domain. The eruvin, while not physically imposing, could be construed as expressing the city's preference for one religion over another.

Judge Hilton, of the Quebec Superior Court, disagreed. In an eloquent and comprehensive judgement, he stated that; "Where there is a conflict between the exercise of a Charter right and some perceived public interest or private concern, reasonable accommodation, meaning accommodation up to the point of undue hardship, must be shown to facilitate the exercise of the charter right." Later, he concluded; "The City has a constitutional duty to provide accommodation for religious practices that do not impose undue hardship on its residents."

This decision, while not exactly on point, does confirm the obligation of a municipality to accommodate the religious needs of its inhabitants. It may be possible to use this argument to force a recalcitrant municipality to alter discriminatory zoning regulations.

Legal avenues may ultimately enforce the rights of various religious minorities to their respective places of worship, but at a social, financial and emotional cost. What residual feelings, remain, for example, for a Muslim congregation, when the mayor, herself, argued forcefully against their presence in her neighbourhood? 28