Technology Transactionsby Peter G. Miller
Peter G. Miller
OurBroker®
We generally think of zoning regulations as passive little rules designed to make communities more livable, but there are good reasons to suggest that such perceptions are misguided. If zoning works so well, why are so-called Smart Growth plans necessary? Are such proposals anything other than still more zoning restraints, rules which deny property owners the full value of their holdings?
Not only does the entire zoning process inconveniently broach if not demolish the Fifth Amendment"s prohibition against takings without fair compensation, such rules have also devolved into a kind of community referendum where the loudest group gets to determine local land-use practices. That sure sounds like democracy at work, until you realize that the property in question is not owned by land-use vigilantes.
All of which brings us to the just-enacted Religious Land
Use and Institutionalized Persons Act of 2000, a new federal law designed in part to protect local religious congregations from zoning abuses.
The new legislation says only the least restrictive zoning laws can apply to local groups that want to build a religious facilities. But why is such law required?
"The right to assemble for worship is at the very core of the free exercise of religion," said Sen. Orrin Hatch, a Senate co-sponsor of the measure along with Sen. Edward Kennedy. "Churches and synagogues cannot function without a physical space adequate to their needs and consistent with their theological requirements. The right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.
"The hearing record compiled massive evidence that this right is frequently violated. Churches in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation. Zoning codes frequently exclude churches in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes. Or the codes permit churches only with individualized permission from the zoning board, and zoning boards use that authority in discriminatory ways.
"Sometimes, zoning board members or neighborhood residents explicitly offer race or religion as the reason to exclude a proposed church, especially in cases of black churches and Jewish shuls and synagogues. More often, discrimination lurks behind such vague and universally applicable reasons as traffic, aesthetics, or `not consistent with the city"s land use plan." Churches have been excluded from residential zones because they generate too much traffic, and from commercial zones because they don"t generate enough traffic. Churches have been denied the right to meet in rented storefronts, in abandoned schools, in converted funeral homes, theaters, and skating rinks -- in all sorts of buildings that were permitted when they generated traffic for secular purposes."
The religious land use legislation shouldn"t be necessary, but it is.
According to Rep. Henry Hyde (IL-R) zoning issues often complicate the development of religious facilities. Mormons, he says, have faced a court challenge after their decision to build a temple in a residential area, the right to build a Catholic girl"s school was contested on the basis of zoning rules, and local residents have opposed the construction of various Orthodox Jewish Synagogues claiming worries about increased traffic -- even though Orthodox Jews do not drive on the Sabbath or religious holidays. Hyde"s list also shows that Presbyterians, Seventh Day Adventists, Moslems, and others have been running into zoning claims.
The religious land use law has the effect of making zoning rules less potent. That"s a good start, a principle which should be applied in all cases where private property is being regulated and devalued.
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Save Money Financing & Refinancing
The latest edition of The Common-Sense Mortgage -- routinely among the top-ten best selling real estate books nationwide -- is available in bookstores online and off. In print for nearly 15 years and widely recognized as the standard consumer guide to real estate financing, it"s described by syndicated columnist Robert Bruss as "an encyclopedic, detailed summary of just about everything real-estate investors, agents, lenders and borrowers want and need to know about mortgages."
"On my scale of one to 10," says Bruss, "this superb book rates a 10."
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Question Of The Week
Q I am using a buyer broker and would like to negotiate the fee. If it happens that the fee I negotiate is less than the commission paid to the buyer broker by the seller"s representative, can I get a rebate?
A Amazingly enough, even though you are a principle in the transaction, some states ban rebates to individuals who do not hold a realty license.
Speak with your broker and a local real estate attorney to determine if the same result can be reached in another way. Hopefully discounts, credits, and negotiated fees are not banned in your state.
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Weekly Resource
During the past week the U.S.S. Cole was attacked in foreign waters and a large number of crew members were murdered and injured. The Navy-Marine Corps Relief Society is an established organization dedicated to helping service personal. The group"s mailing address is 801 N. Randolph Street, Suite 1228, Arlington, VA 22203-1978 and tax-deductible contributions are welcome.