This article was written in 2002 for a class in Land Use Law. While some of the legal information is now out of date, the information regarding Ontario Muncipal Board decisions is still relevant and of interest to progressive planners. For this reason, I decided to post the article online. By Lilith Finkler

Introduction

Racialized persons1 seeking space for places of worship in their communities often collide with established white groups unwilling to welcome them. With financial resources sufficient to engage professional planners and lawyers, local residents have successfully delayed, if not halted, developments. Unfortunately, this use of legal mechanisms to prevent the building, renovation or expansion of religious institutions is not new. Places of worship, including churches, gurdwaras, mosques, synagogues, Hindu and Buddhist temples have all experienced opposition to their presence. Ratepayers' associations have gathered to challenge the right of these various religious organizations to congregate in the neighbourhood. Typically, the weapons of choice are municipal zoning by-laws designed to preserve and protect the local area's character from "undesirable" developments.

If a proposed edifice complies with zoning by-laws, the opposition may challenge the zoning designation2. They engage in expensive legal battles, knowing that small community based religious organizations do not have the money to fight them indefinitely. Instead of winning the case on legal grounds, the neighbours may win on financial grounds3 (Wiens, 2001).

This planning phenomenon is not limited to Ontario. Indeed, there are many instances where places of worship have been vigorously opposed. A Buddhist temple in New South Wales, Australia, (Lyall, 1990) a Hindu temple in a village outside London, England, (Nye, 1998) Korean churches (Kuriakos, 2001) and numerous Orthodox Jewish synagogues in the state of New York (House Committee on the Judiciary, 1999) all fought lengthy legal battles to assert their right to assemble for religious purposes.

Exclusionary zoning also restricts locations of religious institutions in non-Christian, non-European contexts. In Malaysia, for example, non-Muslims until recently, required special approval from State Islamic Councils to erect a place of worship. The Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism has challenged this and other rules established by the Malaysian government (U.S. State Dept., 2002).

In North American residential areas, people oppose the use of single family residences as places of worship, typically citing parking problems and noise disturbances (Daniel, 1998, Breyer, 1993, Williams, 1966). Municipal governments are reluctant to allow religious institutions to locate in industrial areas. Mosques, churches, etc are tax exempt and local governments wish to maximize their revenue base (City of Toronto, 1998, Thoburn, 1994).

Commercial locations, such as space in a mall, are often expensive and beyond the reach of small congregations. In rural areas, undeveloped land may be environmentally protected. Portions of the Niagara Escarpment, for example, have an escarpment protection area (E.P.A.) designation. Developments in such areas may face even greater hurdles than they would in urban centres.

American academics have argued that zoning regulations are used disproportionately and specifically to curtail the activities of persons of colour and adherents of "minority faiths"4. Professor Cole Durham, for example, stated at the House Committee on the Judiciary, that Jews account for only 2 % of the U.S. population, but 20% of the reported contested "location"5 cases and 17% of contested "accessory6" cases involved (Durham, 1998). According to another brief submitted by one U.S. church in their role as amicus curiae, "though minority churches represent only nine per cent of the population, they are embroiled in half the lawsuits involving zoning and churches"(Smith, 2000).

If a municipality insists that a religious gathering can only take place in a large size lot, then smaller congregations are effectively excluded. 7(Kasdan, 1998). If Orthodox Jews must walk to synagogue on holy days and no synagogue is allowed within city limits, then de facto, Orthodox Jews cannot live in that area. Finally, when certain animal related rituals are prohibited by law, particular African sects are unable to reside within the vicinity8 (Kasdan, 1998, Maher, 1998). In each of the above-mentioned situations, by-laws were enacted to discourage a particular religious or ethnic group. These by-laws were challenged and found to be discriminatory both on their face and in practice.

This conflict between zoning by-laws and freedom of religious expression existed to such an extent in the United States, that the Religious Land Use and Institutionalized Persons Act (R.L.U.I.P.A.) was passed in July, 2000. The bill, which received unanimous assent in the U.S. Senate, was designed precisely to address potential human rights violations in denying permission to proposed places of worship (United States Senate, 2000).